IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 CRL.A.No.1730 of 2007(A) ------------------------------- SC.171/2005 of ADDL. SESSIONS COURT, VADAKARA .................... APPELLANT: -------------- KUMARAN, S/o Kannan, C.NO.5160 CENTRAL JAIL, KANNUR BY ADV. SRI.P.V.VIJAYA KUMAR (STATE BRIEF) RESPONDENT: ---------------- STATE OF KERALA, S.H.O., THOTTILPALAM POLICE STATION CR.NO. 100/3. BY ADV. PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1730 of 2007 ------------------------------------------------ Dated this the 28th day of February, 2008 JUDGMENT Convict No.5160, Kumaran, S/o Kannan has preferred this appeal from Central Prison, Kannur assailing the conviction and sentence passed against him by the Additional District and Sessions Judge, Vadakara under Section 55 (a) of the Abkari Act vide judgment dt. 30/07/07 in S.C.171/05. On conviction he was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for a further term of six months. 2. The prosecution case is that at about 4.00 p.m. on 10/09/03, at Maruthomkara amsom, the appellant was found in possession of 17 bottles of I.M.F.L in contravention of the provisions of the Abkari Act and thereby he has committed an offence punishable under Section 55(a) of the Abkari Act. The final Crl. Appeal No.1730 of 2007 -2- report in Crime No.100/03 of Thottilpalam Police Station registered in connection with detection of the offence, after due investigation in the case was filed before the Judicial First Class Magistrate, Nadapuram and the learned Magistrate after complying with all legal formalities, committed the case to the Sessions Division, Kozhikode as per Committal Proceedings No.323/03. In the Sessions Division, Kozhikode, the case was registered as S.C. 171/05 and the Sessions Judge made over the case to the Additional Sessions Judge, Vadakara for trial and disposal. 3. On appearance of the appellant in the court below, he engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offence under Section 55(a) of the Abkari Act; was read over and explained to him and he was questioned by the Additional Sessions Judge. Thereupon, he Crl. Appeal No.1730 of 2007 -3- pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs.1 to 6; got marked Exts.P1 to P7 and got identified MOs.1 to 3. On the prosecution closing their evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. The court below heard arguments of the prosecution and the defence and considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of offence punishable under Section 55(a) of the Abkari Act; convicted him thereunder; heard him on the question of sentence and sentenced him as already stated. Hence, this appeal by the aggrieved appellant from jail. Crl. Appeal No.1730 of 2007 -4- 5. As the appellant had not engaged a lawyer of his choice to argue this appeal, Advocate Sri.P.V.Vijayakumar was appointed on State Brief to argue the appeal on behalf of the appellant. Heard arguments of counsel for the appellant and the Public Prosecutor for the respondent/State. 6. It is vehemently urged by the counsel for the appellant that the witnesses examined by the prosecution to prove the occurrence are only police officials and no independent witness has been examined; that the evidence of the police officials who have, thus tendered evidence are not sufficient to establish the prosecution case as there are inconsistencies in their evidence; and that therefore, the appellant should have been found not guilty and acquitted. He has taken me through the entire evidence in the case to buttress his arguments. Crl. Appeal No.1730 of 2007 -5- 7. PW4 was the Sub Inspector of Police at the Thottilpalam Police Station on the date of occurrence. According to him, he was conducting patrolling in the station jeep along with H.C.3508, (PW2) and other police constables at the place Kooppukada at Pashukkadavu in connection with Onam celebrations and at about 3.40 p.m. while they were returning from Kooppukada he got information that the appellant is conducting sale of IMFL near to his residence; that thereupon, by 4.00 p.m. they reached near the house of the appellant and then the appellant was found on the western side of his house taking a bottle of IMFL from the bag held by him and delivering it to another person; that he intercepted the appellant and examined the bag and thereupon, seven bottles of “Magestic Fine Brandy” each bottle containing 375 ml. of Brandy and another ten bottles of IMFL each bottle containing 100 ml. of liquor was found in the Crl. Appeal No.1730 of 2007 -6- bag; that consequently, the appellant was arrested preparing Ext.P3 arrest memo and took into banthavast under Ext.P1 by way of sample one bottle each from the two sets of liquor in 375 ml. bottle and 100 ml. bottle preparing Ext.P1 mahazar in that behalf and going back to the Police Station they registered the case against the appellant drawing up Ext.P4 FIR in that behalf; that the samples and the material objects were produced before court under Ext.P5 property list and submitted Ext.P6 forwarding note in duplicate to have the samples subjected to chemical examination and that the report so obtained is Ext.P7. He has identified the nine bottles of 100 ml. liquor as MO1 series and six bottles of 375 ml. liquor as MO2 series and the bag wherein the bottles were kept as MO3. In cross examination he has deposed that labels were affixed only on the sample bottles and not on all the bottles. He has stated in cross examination Crl. Appeal No.1730 of 2007 -7- that Exts.P1 and P4 are prepared in the handwriting of one Anil Kumar. It is not stated as to whether the Anil Kumar is a police constable. However, the said Anil Kumar is not examined. When asked with whom the material objects were being entrusted at the police station, he has stated that it must have been shown in the property register. It is seen that the material objects were produced before court along with Ext.P5 property list on 12/09/03 namely on the second day of the seizure. However, it is strange that PW4 has deposed in cross examination that he has not conducted any search in the house of the appellant especially when according to him the house of the appellant is only ten metres away from the scene of occurrence. 8. PW1 is a police constable who has given evidence that he was accompanying PW4 in the detection and seizure of the material objects. His testimony is to the effect that Crl. Appeal No.1730 of 2007 -8- from out of seven bottles of 375 ml. capacity and ten bottles of 100 ml. capacity of IMFL one bottle each was taken as sample that the balance nine numbers of bottles of 100 ml. capacity is MO1 series; that the balance six bottles of 375 ml. capacity are MO2 series and has deposed that on all the bottles of 375 ml. capacity labels were affixed signed by himself, the appellant and witnesses. He has further stated in cross examination that in the material objects or in Ext.P1, no independent witness has signed and that however, he is not aware as to who has taken the material objects from the jeep to the Police Station and asserts that however, it was not taken either by himself or by PW4 the Sub Inspector. 9. It is worthy to note that according to PW4/the Sub Inspector of Police, labels were affixed only on the sample bottles and not on all the bottles. PW2 is the Head Constable who Crl. Appeal No.1730 of 2007 -9- accompanied PW4 in the detection and seizure. His evidence is to the effect that one of the bottles were opened and from therein sample was taken and while asked in chief examination, he has stated that it appears that the person in the dock is the one who was arrested with IMFL. In cross examination he states that in the bottles seized, labels were not affixed and further, the the Sub Inspector has by smell and taste identified the contents. In cross examination, he again asserts that the liquor was transferred into another bottle for the purpose of sampling and that he is not aware as to whether label was affixed on that bottle. Thus, in the matter of furnishing details with respect to the seizure of the material objects, sampling etc., the testimony of PWs.1, 2 and 4 who were the police officials in the detecting team are not consistent. The result is that the testimony of the witnesses being not consistent is not Crl. Appeal No.1730 of 2007 -10- sufficient to inspire confidence in the judicial mind. It is worthy to note that in the event of the detection and seizure being true there cannot be different versions especially among the official witnesses as to the manner in which the seizure was effected and the procedure adopted etc. The inconsistencies in the testimony of PWs.1, 2 and 4 are not such so as to be reconciled in any manner whatsoever so as to given credence to the prosecution case. 10. PW3 is an independent witness but he does not support the prosecution case to any extent whatsoever. He is witness to Ext.P2 scene mahazar. But that has no relevance at all as in the seizure mahazar there are two witnesses and they are only police constables and no independent witness is cited to prove the seizure. 11. PW5 is Sub Inspector of Kuttiadi Police Station who has conducted the initial Crl. Appeal No.1730 of 2007 -11- part of the investigation in the case on the instructions from the C.I. of Police, Kuttiadi. He has only prepared Ext.P2 scene mahazar. According to him, though he questioned the witnesses, no witness has told him as to what manner of seal was affixed on the samples and as to what was used to affix on the seal. It is also behind comprehension as to why a search of the house of the appellant was not conducted when seventeen bottles of IMFL was recovered from his possession on his having been found in possession thereof in a bag in the courtyard of his house if at all the prosecution case is true. Thus, the prosecution evidence on the whole, is not sufficient to inspire confidence and to enable this Court to accept the prosecution case of detection and seizure as being genuine and not foisted. The court below has not adverted to these aspects and has given a go bye to the inconsistencies and Crl. Appeal No.1730 of 2007 -12- contradictions in the evidence of witnesses and that too, all police officials only. The court below should have acquitted the appellant granting him at least benefit of doubt. In the above view, I conclude that the appellant deserves an acquittal in reversal of the conviction entered into by the court below. 12. In the result, allowing this appeal, I set aside the conviction and sentence passed by the court below against the appellant. The appellant shall be released forthwith from prison if his detention is not required to be had in connection with any other case. 13. Communicate the gist of the judgment forthwith to the Superintendent of Central Prison, Kannur to enable release of the appellant as directed above. K.P.BALACHANDRAN, JUDGE kns/-