IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 CRL.A.No. 368 of 2003() ----------------------- AGAINST THE ORDER DATED 28/01/2003 IN CP.15/2000 IN SC.108/2000 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK NO.1), MANJERI .................... APPELLANT(S): ACCUSED --------------------- KUNHADI, S/O. PATTASSERI KORAN, KOTTAMTHATA, PARAPPANANGADI AMSOM, ULLANAM DESOM. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): COMPLAINANT -------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.368 OF 2003 ----------------------------------- Dated 29th June, 2011 J U D G M E N T This appeal arises from conviction and sentence passed against appellant under section 55(a) of Abkari Act to undergo rigorous imprisonment for three years and to pay Rs.1,00,000/- in default to undergo simple imprisonment for two years. 2. According to prosecution, on 11.12.1997 at about 5.30 pm on a pathway accused was found in possession of two litres of arrack in a black can having capacity of five litres. The articles were seized from the spot and accused was arrested and a case was registered against appellant. After investigation, a report was filed alleging offence under section 55(a) of Abkari Act. Prosecution adduced evidence, examined PW1 to PW6 marked Ext.P1 to P4 and MO1 on its side. Accused did not adduce any evidence while questioned under section 313 Cr.P.C. He stated that he was made to sign by police by force. 3. On an analysis of the evidence in detail, trial court found Crl.A. No.368/03 2 that evidence of PW1 and PW6 Excise officials inspires the confidence of the court to accept their evidence and accused was found guilty of offence under section 55(a) of Abkari Act. 4. Heard both sides. Perused the records. Learned counsel for appellant argued that after arrest, accused was not produced on the same day of detection of offence, before the Excise Inspector as required under section 40 of Abkari Act. It is also argued that there is discrepancy in regard to the date on which accused was produced in court. The arrest memo is not produced. Hence accused is entitled for acquittal. 5. Learned Public Prosecutor admitted that there is some discrepancy in the date on the seal affixed by court on the certain documents. But, an overall appreciation of evidence would show that date seen on the seal is only a mistake. Arrest was only on 11.12.1997 and all the documents were prepared and sent to the court without any delay. Those were forwarded to court on the next day, 12.12.1997 and accused was also produced in court on that day. Therefore, discrepancy relating to date on the seal on the documents (which show that the documents reached the court on 11.12.1997) may not be treated as vital to discard the Crl.A. No.368/03 3 prosecution evidence, it is submitted. Appellant was produced before PW3, who was in charge of Excise Inspector on the relevant date and hence there is no violation of section 40 of the Act. 6. On hearing both sides and on going through the documents and evidence I find that as per the prosecution case, the incident happened on 11.12.1997 at about 5.30 pm and the accused was arrested from the spot. PW6 is the detecting officer. Section 40 of the Abkari Act mandates that accused who is arrested under section 34 shall be produced before the Excise Inspector without unnecessary delay. But nobody stated that accused was produced before any Excise Inspector after his arrest, as required under section 40. The evidence of PW3 only shows that he was in charge of Excise Officer on 12.12.1997. PW3 before whom accused was stated to be produced is not an Excise Inspector. Hence, there is violation of section 40 of Abkari Act. 7. Apart from all this, it is seen from evidence of PW1 Excise Guard, who was in the detecting party that accused was produced before the Magistrate Court on 11th ie on the date of detection of offence itself. But, according to PW3, he was the person who Crl.A. No.368/03 4 produced the accused before the Magistrate court and as per his evidence accused was taken into custody by him only on 12.12.1997. Therefore, the evidence of PW1 and PW3 is contradictory in respect of date of production of accused in court. It is also brought out in evidence that all the documents such as Mahazar, occurrence report, forwarding note reached the court on 11.12.1997 itself as revealed from the date on the court seal. Therefore, as per the date of seal of court and evidence of PW1 it has to be concluded that accused was produced on 11th. 8. At the same time, it is pointed out by learned Public Prosecutor that forwarding note was prepared only on 12.12.1997 and there may be a mistake in affixing the seal from the court as 11.12.1997. But on a perusal of record, I find that there is absolutely no evidence to show that any mistake was committed by court, in affixing the seal. Prosecution did not take any step to prove that accused and the documents were produced not on 11.12.1997, as revealed from evidence of PW1 or as per the date on the seal. The mistake could have been explained very easily, if it was actually a mistake. But in the absence of proving the discrepancy, an adverse inference can be drawn against Crl.A. No.368/03 5 prosecution. 9. It is also relevant to note that remand report was not introduced in evidence. No staff of the court was examined to explain the discrepancy or the alleged mistake committed from the court in the date of seal. Learned Public Prosecutor pointed out that the documents would have reached the court only on 12.12.1997, since, offence was detected only at 5.30 pm and the documents would not have been reached the court during court hours on 11.12.1997 and the date in the seal can only be a mistake. 10. I am unable to endorse such view in the absence of evidence. There are two possibilities. Either there was a mistake in recording date in the seal or it may be a case where date and the time stated by prosecution in respect of the detection of offence may not be correct. When two views are possible, court has to accept the view which is in favour of accused and he must be given the benefit. PW1 categorically stated that accused was produced in Magistrate “Court” on 11th itself, but he is not a hostile witness. He is an official who has supported the prosecution. His evidence cannot be rejected, especially on the Crl.A. No.368/03 6 vital aspect only because it goes against prosecution. 11. In this connection, it is also to be noted that PW3 Excise official who claims that accused and the article were produced, has no case that sample was seized in this case were produced before him. He only stated that MO1 was received by him. But he did not state anything about production of sample. Therefore, in whose custody the sample was and who produced the sample before court, whether the sample was kept in safe custody etc. are not proved in evidence. PW1 and PW6 only stated vaguely that accused and article were produced in the office. No official stated that the material objects seized in this case were kept in safe custody till those were handed over to PW3. 12. Taking all the above facts into consideration, I find that prosecution has not proved its case beyond reasonable doubt. In the light of the evidence adduced, it may not be safe to convict the accused. Trial court proceeded on the ground that date on the seal could be a mistake and it was held that accused was produced before Magistrate Court only on 12.12.1997 and not on 11.12.1997, as revealed from the court seal. This finding is not sustainable, in the absence of any evidence to show that seal Crl.A. No.368/03 7 affixed by court is wrong. 13. The date on the seal is of great importance and if any mistake was committed by court, in putting the date, trial court ought to have taken steps suo moto to clear the discrepancy relating to the date. But, it was not done. Hence there is no other alternative than to acquit the accused, in the light of the discrepancy in evidence which are discussed above. In the result, the following order is passed: 1. Conviction and sentence passed against appellant under section 55(a) of Abkari Act are set aside. 2. Accused is acquitted of offence under section 55(a) of Abkari Act, extending benefit of doubt. 3. Accused is set at liberty forthwith. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //