IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 CRL.A.No. 2238 of 2007(D) ------------------------- SC.1158/2005 of ADDL. SESSIONS COURT FASTTRACK ADHOC)-II, PALAKKAD .................... APPELLANT(S): ACCUSED --------------------- CHAMI, AGED 60 YEARS, S/O.CHELLI, VETTIKUNNU KATTALATH COLONY, PAREMPADI PANCHAYATH, THRISSUR DISTRICT. C.NO.5134, CENTRAL PRISON, KANNUR. BY ADV. ADV.C.J JESTIN (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, EXCISE INSPECTOR, OTTAPPALAM EXCISE RANGE, CR.NO.38/2002. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON / / , THE COURT ON 15/01/2009 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No. 2238 of 2007 ---------------------------------------------- Dated, 15th January, 2009 JUDGMENT The convict who is undergoing imprisonment in pursuance of the impugned judgment challenges his conviction and sentence imposed by the Additional Sessions Judge, Fast Track Court-No.II, Palghat by its judgment dated 21.7.2007 in S.C.No.1158/2005. By the above judgment, the trial court found the accused guilty under section 8(1) and 8(2) of the Abkari Act and he was accordingly sentenced and, aggrieved by the same, he preferred this jail appeal. 2. The prosecution case is that on 25.11.2002 at 12 noon, the accused was found in possession of 2 litres of arrack in a 5 litre capacity Can at the house bearing Door No.11/525 in Palapuram Desom of Ottappalam Taluk, in violation of the provisions of the Abkari Act and thereby the accused had committed offences punishable under sections 55(a) and 8(1) of the Abkari Act (for short, `The Act’). On the basis of the said allegation, Crime No.38/2002 was registered in the Ottappalam Excise Range. On completion of the investigation, charge was laid before the court of the Judicial First Class Magistrate, Ottappalam, whereupon CRL.A 2238/07 -:2:- C.P.No.28/2005 was instituted on taking cognizance. The learned Magistrate by order dated 27.7.2005 in the above proceedings committed the case to the Sessions Court where S.C.No.1158/2005 was instituted and from where the case was made over to the Assistant Sessions Court, Ottappalam and subsequently, withdrew the same and transferred to the trial court for disposal. On appearance of the accused, after hearing the prosecution as well as the defence, a formal charge under section 8(1) and (2) of the Act was framed which was read over and explained to the accused and he pleaded not guilty. Consequently, the prosecution adduced evidence which consists of the deposition of PWs 1 to 6 and the documentary evidence such as Ext.P1 to P13. The Jerry Can was identified and marked as M.O-1. The incriminating circumstances, which emerged during the prosecution evidence, when put to the accused under section 313 Cr.P.C., he denied the same. Finally, the court found the accused guilty of the charge levelled against him and accordingly he was sentenced to undergo simple imprisonment for 4 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he was further directed to undergo simple CRL.A 2238/07 -:3:- imprisonment for a further period of 4 months. It is the above conviction and sentence challenged by the appellant by preferring this appeal from jail. 3. As the appellant is undergoing imprisonment pursuant to the impugned judgment, Advocate Mr. C.J.Jestine is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. I have heard the learned counsel appearing for the appellant and also the learned Public Prosecutor. I have also perused the evidence and materials on record. 4. The prosecution case is that while PW1 was on patrol duty, he received information to the effect that illicit arrack was kept in the house owned by one Velayudhan and pursuant to such information PW1 and party proceeded to the place of occurrence, namely, house of said Velayudhan and on conducting search, the party recovered two litres of illicit arrack from the upstairs of the said house and the accused and his wife were also present at the time of search. Thus according to the prosecution, the accused had committed the said offence. In order to prove the above prosecution case, the prosecution mainly depends up on the oral testimony of CRL.A 2238/07 -:4:- PW1, the officer who detected the crime. When PW1 was examined, he had deposed in terms of the prosecution case. He had deposed about receipt of the information and further stated that he proceeded to the house of the said Velayudhan. Ext.P1 seizure mahazar, Ext.P2 search memo, Ext.P3 search list and Ext.P4 arrest memo are proved through PW1. M.O-1 Can was also marked and identified through PW1. According to PW1, when the party entered the house, the accused was taking food and one lady was standing beside him. PW1 waited there till the accused completed his food. Thereafter on questioning, he disclosed that he is the husband of Lakshmi, daughter of earlier mentioned Velayudhan and the accused also disclosed his name as Chami. According to PW.1, sampling was done and Ext.P1 was prepared and arrest was effected in the presence of the independent witnesses. PW1 further deposed that on further questioning of the accused, he gave his correct address and told him that he is residing in the said house as the house of his wife. According to PW1, Lakshmi, wife of the accused and daughter of Velayudhan told him that Velayudhan is having the habit of wandering and she does not know the CRL.A 2238/07 -:5:- whereabouts of the said Velayudhan. Prosecution had cited and examined PWs 2 and 5 to prove the case, especially, to prove Exts.P1 and P3. But they turned hostile towards the prosecution. PW3 is the Excise Guard who accompanied PW1 and prepared Ext.P2 search memo. According to the prosecution, on completing the procedure at the spot, PW1 and party returned to the excise range office and handed over the documents, Material objects and the accused to PW4 another Preventive Officer attached to the same range who in turn prepared Ext.P5 occurrence report. Thereafter the accused, the documents and the contraband articles including the sample were produced before the court on 25.11.2002 itself. PW6 is the Excise Inspector who undertook the investigation and finally laid the charge sheet. On the basis of the above evidence and materials, the trial court found that the accused is guilty of the charge levelled against him. 5. The learned Counsel appearing as State Brief for and on behalf of the appellant submitted that the finding arrived on by the court below is unsustainable and there is dearth of cogent evidence to convict the appellant. The learned Counsel pointed out that as CRL.A 2238/07 -:6:- per the impugned judgment, the trial court had sentenced the appellant to undergo simple imprisonment for a period of 4 years and also sentenced to pay a fine of Rs.1,00,000/-. According to the learned counsel, the sentence awarded is so harsh but the evidence adduced by the prosecution is not convincing and disproportionate to the standard required for punishing the accused with such harsh sentence. The learned counsel pointed out that the prosecution has miserably failed to establish that the appellant/accused was in possession of illicit arrack. It is also the case of the learned counsel that based upon the interested version of PW1 and other official witnesses, the accused is not liable to be convicted and sentenced especially in the absence of independent evidence. It is further argued by the learned counsel that there is culpable delay in reaching the sample in the lab. It is pointed out that as per the materials, the sample was entrusted with the Excise Guard on 26.11.2002, but the same was reached in the lab only on 31.12.2002 and the above delay is not explained by the prosecution. Another point argued by the learned counsel is that even though the prosecution has not proved the possession of the contraband CRL.A 2238/07 -:7:- article by the accused, they have further failed at least to show that the accused was residing in the house on the date of the occurrence. In supplement to the above point, the learned counsel further submitted that the prosecution has failed to show by adducing evidence that the house of the owner Velayudhan was not responsible for the keeping of the contraband article in his house. Thus according to the learned counsel, the conviction and sentence passed by the court below is liable to be set aside. 6. Per contra, the learned Public Prosecutor submitted that the guarantee for the correctness and the truth of the prosecution case is that of the prior information received by PW1 and it was on the basis of the said information, the crime was detected. It is further submitted by the learned Public Prosecutor that though the independent witness turned hostile, there is no illegality in accepting and acting upon the evidence of the official witness, especially, when those evidences are free from any contradictions, discrepancies or infirmities. It is also submitted that after the seizure, the entire materials were produced before the court and there is no delay in producing the material objects before the court CRL.A 2238/07 -:8:- below so as to give doubt with regard to the tampering of the evidence etc. It is also pointed out by the learned Public Prosecutor that sample was sent from the court, pursuant to which, Ext.P12 chemical examination report was received which certified the presence of ethyl alcohol in the contraband article. Therefore, according to the learned Public Prosecutor, there is no ground to interfere with the order of conviction and sentence passed by the trial court. 7. I have carefully considered and analysed the argument with the support of the materials and evidence on record. I am not repeating the prosecution allegation and the materials. But from the allegation of the prosecution and the materials, one fact is clear that there is no direct seizure of the contraband article from the physical possession of the accused. Thus, the prosecution allegation that the accused has committed the offence under section 8(1) and (2) of the Act has to be examined on the basis of the above admitted factual position. In this juncture it is relevant to note that, even according to PW1, though he had stated that he went to the spot in pursuance of the prior information received by him, from CRL.A 2238/07 -:9:- the information it is not discernible that the accused was possessing or keeping the illicit arrack. But the information was very specific to the effect that the contraband article was kept in the house belonged to one Velayudhan. According to PW1, when he reached at the house, the accused was taking food and PW1 waited there till the accused finished the meals. PW1 did not say anything about the conduct of the accused on seeing the raiding party. There was no attempt from the part of the accused to flee from the spot and to escape from arrest. According to PW1, the contraband article was recovered from the up-stair and not from the area where the accused was seen taking food. The prosecution has no case that the accused alone was residing in the said house. Without examining either the inmates of the house, or any other neighbours or the local residents, the prosecution believed the hearsay evidence of PW1 to the effect that Velayudhan, the owner of the house is in the habit of wandering. The above statement of PW1 is unfounded and unsupported by any materials. If that be so, there is no materials or evidence to rule out the possibility that the contraband article was kept by the said Velayudhan. CRL.A 2238/07 -:10:- 8. In order to connect the accused with the alleged seizure, the prosecution very much pressed into service Ext.P11 note dated 25.2.2005 issued by the Village officer, Ottapalam-2 village. On a reading of Ext.P11, what can be seen that the accused - who is the husband of Lakshmi, daughter of Velayudhan, Allipparambu Veetil, was residing along with said Lakshmi. As pointed out by the learned counsel, Ext.P11 is not sufficient to show that the accused was residing in the said house on the date of the alleged seizure, i.e., on 25.11.2002. In this juncture, it is also relevant to note that the prosecution did not care to produce the ration card related to the said house. It is also relevant to note that no attempt was made to produce the voter’s list. If these documents are available, the court can come to a conclusion, at least, whether the accused was residing in the said house on the crucial date. 9. When we examine the prosecution case in the above background, it can be seen that unless and until the evidence of PW1 and other official witnesses are corroborated from independent source, no value can be attached to the testimony of official witnesses and no finding can be arrived that it was the accused who was responsible for CRL.A 2238/07 -:11:- keeping the contraband article in the above mentioned house and it was recovered from the exclusive possession of the accused. The trial court miserably failed to consider the above aspects and simply on the basis of the above said shabby evidence of prosecution, the court came to the conclusion that the accused had committed the offence which according to me is not legally sustainable. Consequently, the conviction is liable to be set aside. 10. In view of the above finding, the conviction imposed against the accused is set aside and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty. 11. As the appellant is undergoing imprisonment pursuant to the impugned judgment which I have already set aside and he is acquitted of the charges levelled against him, there will be a direction to release the appellant/accused forthwith, if he is not wanted in any other case. The appeal is allowed accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A 2238/07 -:12:- V.K.MOHANAN, J. CRL.A.No.2238 OF 2007 Judgment Dated: 15.1.2009.