IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 2134 of 2003() -------------------------------- SC.537/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD ......................................................... APPELLANT(S): ACCUSED ------------------------------------- MALINKA NAIK, S/O. PUTTA NAIK, AGED 38 YEARS, RANJAMOOLA HOUSE, NELKA, DARGHAS, ENMAKAJE VILLAGE, KASARAGODE. BY ADVS. SRI.M.RAMESH CHANDER SRI.TEK CHAND.V. RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, BADIADKA POLICE STATION. BY ADV.SRI.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.2134 OF 2003 -------------------------- Dated this the 18th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.537/2000 of the Additional Sessions Judge (Ad Hoc - I) Kasaragod. It is the case of the prosecution that on 3.3.2000 at about 4.30 p.m. the accused was found in possession of 16 bottles of Boss Whisky each having 375 ml. capacity and the accused was apprehended and article seized and charge was laid u/s.55 (a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of 3 ½ years and pay a fine of Rs.1 lakh. It is against that decision the accused has come up with appeal. The points that arise for determination in the appeal are, 1. Whether the materials are sufficient to hold that the prosecution has succeeded in proving the guilt of the accused. 2. Whether the conviction and sentence requires any interference. CRL.A.No.2134 OF 2008 2 2. Point Nos.1 and 2:- It is the case of the prosecution that on 3.3.2000 at about 4.30 p.m., PW3 has caught hold off the accused with 16 bottles of Boss Whisky and on tasting it was confirmed that it was whisky and therefore he was arrested. Ext.P1 is the seizure mahazar which would show that along PW3 other police officials were available and the alleged seizure had taken place at 4.30 p.m. in the broad day light. There are two attesting witnesses to the said documents. As per the seizure mahazar, 16 bottles of whisky, two bottles taken as sample, remainder of the whisky after taking the sample and the bag used for carrying it were seized. The witnesses are PWs 1 and 2. PW1 had deposed that he had signed in Ext.P1 but he would depose that he had signed it from the shop at 10 a.m. PW2 was declared as hostile and in cross examination, nothing is brought out to show that he has deviated from truth. So the independent witnesses examined to prove the seizure mahazar and scene mahazar had not really helped the prosecution. It is not uncommon that the independent witnesses in Abkari cases CRL.A.No.2134 OF 2008 3 used to turn hostile. It is under those circumstances, the courts have held that if the evidence of the official witnesses are trust worthy, after putting it into meticulous scrutiny, conviction can be had on the basis of the same. Another important aspect which has to be looked into in this case is, none of the material objects were produced before the court at the time of evidence and I find from the case bundle that a letter had been addressed stating that the other arrack packets had leaked and it had fell on the remaining bottles preserved there and it is incapable of being produced before the court. It has to be remembered that the production of material objects is very important and a casual reply sent by the person who has been entrusted with the task of preserving those objects on behalf of the court is not sufficient. So far as the present case is concerned, we are not having any leak proof material objects to connect the accused with the crime. The only evidence available is that of PW3, Sub Inspector of police. When the material objects are not capable of being produced, atleast sufficient evidence of the other official CRL.A.No.2134 OF 2008 4 witness who are said to have accompanied the Sub Inspector of Police should have been made available before the court. Unfortunately, the prosecution was satisfied with the evidence of PW3 alone. I had scrutinised the evidence of PW3. PW3 does not even bother to state in chief or cross as to the reason for not producing the material objects entrusted. It is in this background one has to analyse, whether the delay in producing the material objects before the court at the inception is fatal or not. As stated by me earlier, the court is not in a position to understand whether the bottles were seized and sealed properly and whether it can link the accused with the crime. Even though the bottles were seized on 3.3.2000, it reaches the court only on 6.3.2000 and in the backdrop of the absence of the material objects, unless there is sufficient evidence to show that the liquor seized and sent for examination is a portion of the liquid alleged to be seized from the accused, the court can not convict the accused for the offence. So, it was under those circumstances it was imperative on the part of the prosecution to CRL.A.No.2134 OF 2008 5 tender atleast acceptable explanations and show the bonafides if really the material objects were incapable of being produced before the court. The non-examination of the other official witnesses also has to be viewed with suspection in the backdrop that the material objects are not forth coming before the court. I am conscious of the fact that it is not the quantum of evidence that decides the criminal case, but it is the quality of the evidence that has to be looked into. The quality of the evidence in this case is of PW3 who has detected the offence. His evidence is lacking in many aspects including the non- production of the material objects and therefore it is not safe for the court to rely upon the oral evidence of him alone to convict the accused. So I feel that justice can be met by giving the accused the benefit of doubt. Therefore the conviction and sentence passed by the trial court is set aside and the accused is found not guilty of the offence u/s.55(a) of the Abkari Act. In the result the appeal is disposed of as follows :- 1. The conviction and sentence which is passed by the CRL.A.No.2134 OF 2008 6 Trial Court u/s.55(a) of Abkari Act is set aside. 2. The accused is found not guilty of the offence alleged against him u/s.55(a) of Abkari Act and he is acquitted and set at liberty. Accordingly the appeal is disposed of. M.N.KRISHNAN, JUDGE ami.