IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 100 of 2003 -------------------------------------------- CRA.363/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.899/1997 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER/APPELLANT/ACCUSED: CHIRUTHAKUTTY, W/O. KUTTAPPAN, PUTHUKUDY CHALIL, MATTANODE DESOM, KAYANNA AMSOM, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT: THE EXCISE INSPECTOR, BALUSSERY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 293/2003 IN CRRP 100/2003 DISMISSED 1.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.100 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced for the offences under Sections 55(b) and (g) of Abkari Act by Judicial First Class Magistrate-II, Perambra in C.C.No.899/1997. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.No.363/1999. Learned Additional Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 5.9.1996 at about 6.30 a.m., getting information that petitioner was dealing with wash and articles for illicit distillation of arrack, after preparing Exhibit P1 search memo, PW1, the Excise Inspector of Perambra Excise Circle, along with PW2, the CRRP 100/03 2 Excise Guard, proceeded to the house of the petitioner and found the petitioner distilling arrack and seized MOs 1 to 5, the utensils and wash and prepared sample and Exhibit P3 mahazar in the presence of PWs 3 and 4, the independent witnesses. The petitioner was arrested and she was produced before Excise Circle Office. After preparing the occurrence report, the case was registered for the offences under Sections 55(b) and (g) of Abkari Act. PW5, lodged the complaint, which was taken cognizance by the learned Magistrate. 4. Petitioner pleaded not guilty. On the evidence of PWs 1 to 5 and Exhibits P1 to P8 and MOs 1 to 5, learned Magistrate convicted and sentenced the petitioner for the offences under Sections 55(b) and (g) of Abkari Act. Though petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.No. 363/1999, learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the same. CRRP 100/03 3 5. Argument of the learned counsel is that courts below did not properly appreciate the evidence and the evidence establish that the case was foisted. It was pointed out that PW3, the independent witness to the seizure mahazar, turned hostile and PW4 supported the prosecution case and evidence of PW4 establishes that there was no seizure as alleged and the case was foisted. It is, therefore, argued that based on the evidence of PWs 1 and 2 alone petitioner should not have been convicted. 6. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective and there is no reason to disbelieve the evidence. 7. Exhibit P3 mahazar shows that PW1, the Excise Inspector, while on patrol duty, got information that petitioner was distilling arrack and therefore, proceeded to House No.K.P.V/242 and on reaching there, seized MOs 1 to 5 and arrested CRRP 100/03 4 the petitioner. PWs 3 and 4 are the attesting witnesses to Exhibit P3 mahazar. PW3 turned hostile to the prosecution, though PW4 supported the prosecution. The fact that independent witness to the mahazar turned hostile to the prosecution is not a sufficient ground to reject the prosecution case or to disbelieve the evidence of Excise Officials. But, PW4 did not turn hostile to the prosecution. He supported the prosecution case. But, evidence of PW4 casts sufficient doubt on the prosecution case. PW4 admitted that he is an active worker of anti liquor committee. If the evidence of PW4 is to be believed, the workers of anti liquor committee informed the excise party and based on that information, the case was registered. Evidence of PW4 casts sufficient doubt on the evidence of PWs 1 and 2. As per the evidence of PW4, members of anti liquor committee, caught hold of the articles used for distilling illicit arrack and they produced the petitioner before the excise officials CRRP 100/03 5 and though he signed in Exhibit P3, it was not signed at the house of the petitioner, but, at the excise office and that too, not at the time when the seizure was made, but later. 8. As per Exhibit P3 mahazar and evidence of PWs 1 and 2, on getting information that petitioner is distilling illicit arrack, PWs 1 and 2 proceeded to the house of the petitioner from where the articles were seized and the accused was arrested. At the same time, evidence of PW4 establishes that articles were seized by them and handed over to the excise party. PW4 also deposed that in the process, petitioner sustained burns and it was when Kalyani had kicked the wash and it fell on the petitioner. In the light of the evidence of PW4, there is genuine doubt with regard to trustworthiness of the the evidence of PWs 1 and 2 and Exhibit P3 mahazar. If PW4 was trying to help the accused, the case could have been appreciated on that basis. But, that is not the case. PW4 is a loyal witness. But, CRRP 100/03 6 the truth has some how come out from the mouth of PW4 that the incident was not as deposed by PWs 1 and 2. 9. Yet another circumstance casts doubt on the prosecution case. As per Exhibit P3, the excise party got information that distillation is being done in the house of the petitioner. They conducted search in House No.K.P.V/242, from where the contraband articles were seized. Still, no evidence was adduced to prove that House No.K.P.V/242 belongs to the petitioner or that she is residing there. Unfortunately, these material aspects were omitted to be looked into by the Magistrate and Additional Sessions Judge. It is also seen that though, as per Exhibit P3 mahazar, petitioner was arrested and MOs 1 to 5 were seized on 5.9.1996, the occurrence report and the property list reached the court only on 12.9.1996. There is no evidence regarding custody of MOs 1 to 5 till then. Evidence of PW1 does not show that at the time of seizure, CRRP 100/03 7 the sample was sealed. In such circumstances, there is no guarantee that the articles, which reached the court on 12.9.1996, were the very same articles which were seized on 5.9.1996. In such circumstances, petitioner is, at least, entitled to the benefit of doubt. If so, the conviction of the petitioner for the offences under Sections 55(b) and (g) of Abkari Act can only be set aside. Revision is allowed. Conviction of the petitioner for the offences under Sections 55(b) and (g) of Abkari Act is set aside. Petitioner is found not guilty of the offences. She is acquitted. The bail bond executed by the petitioner stands cancelled. If petitioner has deposited any amount before the Magistrate as directed by this Court while suspending the sentence, she is entitled to get it reimbursed. 1st July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 100/03 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.100 of 2003 -------------------------- ORDER 1st July, 2010