IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 801 of 2003() --------------------------------- SC.474/1999 of ADDL. SESSIONS COURT (ADHOC- I), KOZHIKODE .................... APPELLANT(S): ACCUSED: ---------------------- VASU, S/O. KANTHA NAIK, ANCHALA, KALLAR VILLAGE. BY ADV. MR.M.RAMESH CHANDER RESPONDENT(S):STATE & COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER, RAJAPURAM POLICE STATION, KASARAGOD. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.A. NO.5084/2003 IN CRL.A. NO.801/2003 DISMISSED 03/08/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.801 OF 2003 ------------------------------ Dated this the 3rd day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.474/1999 of the Additional Sessions Judge (Adhoc-I), Kasaragod. The accused was charge sheeted for the offence under Section 8(1) of the Abkari Act and was convicted thereunder and sentenced to undergo R.I for three years and to pay a fine of Rs. One lakh for the offence under Section 8(1) of the Abkari Act and in default to undergo R.I for six months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether materials are sufficient to connect the accused with the crime and hold that he had committed an offence under Section 8(1) of the Abkari Act (2) is there anything to interfere with the decision rendered by the court below. 3. Points 1 and 2: Heard the learned counsel for the appellant as well as the 2 CRL.A.NO.801/03 Prosecutor. It is the case of the prosecution that on 23.9.1997 at about 11.40 a.m the accused was found distilling illicit arrack at his house bearing door No.V/451 of Panathady village. 4. The defence is that of a total denial. The person who had conducted and detected the offence is not available for examination as he is no more. Only the Assistant Sub Inspector of Police, who is said to have accompanied CW1, was examined in this case. The way in which the investigation has been done is not proper. At 11.45 a.m in the morning a person’s house is attempted to be searched. It is stated that search memo was prepared and sent to the court. No attempt is made to produce the search memo, copy or to get search memo from the court to mark it. Secondly, the accused was not available in the place and the case of the prosecution is that he had ran away from the place. It is submitted that it was the accused’s house and it was from the kitchen the distillation of illicit arrack was found out. There is not even a scrap of paper produced before the court to show that the accused was the owner of that property. 3 CRL.A.NO.801/03 Under ordinary circumstances, when the illicit liquor is seized from the possession of a person, it may not be necessary to have the ownership of the building being established. Unfortunately in this case, the accused was not apprehended from the scene of occurrence and materials are not produced to show that he was the owner of the house. Absence of search memo, absence of any document relating to the ownership of the house, absence of material evidence to show the identity of the accused are material facts that will go very much against the prosecution in a criminal case. 5. I will first refer to the evidence of PW1. PW1 in the chief examination is able to speak about the visit of the house, seizure of the illicit liquor, taking of sample etc. In the cross examination, when he was asked about the search memo, he would say that search memo was prepared but he could not say from where it was prepared or through whom, it was sent. Though he said that the accused was involved in other arrack cases, he would admit that there is no other arrack case against the accused. According to him, the house was searched after the accused has left the place. He would say 4 CRL.A.NO.801/03 that he had stated before the investigating officer that he had previous acquaintance with the accused. But when it was brought out to his notice, it was note there. He would add that it might have been an omission on the part of the investigating officer. For so many questions, he would pretend ignorance and does not give any answer. He would depose that the ration card was examined, but it was not seized. 6. PW5 is the investigating officer who would depose that the ration card was not taken possession of. The independent witnesses have turned hostile to the prosecution as well. So, it is the only testimony of PW1 that is available before the court. The evidence of PW1 certainly can be accepted for conviction provided on meticulous scrutiny it appears to be reliable and acceptable. 7. As stated by me earlier, there is nothing to evidence the preparation of search memo, there is nothing to show how the accused was identified, there is nothing to show that the accused is the owner of the house and when it is so, it may not be safe at all to rely on the uncorroborated testimony of official witnesses to arrive at a decision in a case of this 5 CRL.A.NO.801/03 nature. So, the inevitable consequence is to give the benefit to the accused by way of an acquittal. Therefore, the conviction and sentence passed under Section 8 (1) of the Abkari Act is set aside and the accused is found not guilty of the offence and he is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.801/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.801 OF 2003 ------------------------------ 3rd day of August, 2009 JUDGMENT