IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 CRL.A.No. 968 of 2003() ----------------------- SC.351/2000 of ADDL.SESSIONS COURT (ADHOC) II, KASARAGOD) .................... APPELLANT(S): ACCUSED: ------------------------------------------ K.A.ROY, 29/00, S/O.ANTONY, KUZHIVELIL VEEDU, MANDAPAM, CHITTARIKKAL VILLAGE. BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, BY ADV. SMT.BINDU SREEKUMAR RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss “ CR” P.S.GOPINATHAN, J. ------------------------------------ Crl.A.No.968 of 2003 ---------------------------------------------- Dated this the 25th day of November, 2011 JUDGMENT Appellant is the accused in Sessions Case No.351/2000 on the file of the Additional Sessions Judge, (Ad Hoc-II), Kasaragod. The learned Additional Sessions Judge, after trial, convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for 2 months. Assailing the above conviction and sentence, this appeal is filed. 2. The brief facts of the case are that on 18/8/1999, while PW4, the Sub Inspector of Police of Chittarikkal Police Station, moving on patrol duty along with PW1, the Head Constable and other police personnel got information that the appellant was illegally keeping arrack in his house. PW4 and party, suddenly proceeded to the house of the appellant. When they reached near the house of the appellant, a man was found coming across with a sack on his head. Seeing PW4 and party, after abandoning the sack, the man Crl.A.No.968 of 2003 2 took to his heels. Though PW4 and party made an attempt to chase him, they were not successful. Returning to the spot, PW4 inspected the sack and found that it contained 270 packets, each containing 100 milli litres of illicit arrack. The same was seized for which Ext.P1 seizure mahazar was prepared. Four packets were opened and collected the liquor into two sample bottles. The bottles were sealed and labelled then and there. MO2 is the plastic sack. MO1 series are the remaining 266 packets of arrack. MO3 is the empty packets, from which the samples were taken. Returning to the Police Station, a case was registered for which Ext.P2 FIR was prepared. PW4 took over the investigation. He went to the scene of occurrence, prepared Ext.P3 Scene Mahazar and questioned the witnesses. The sample bottles were forwarded to the Chemical Examiner along with Ext.P5 forwarding note. After analysis, he obtained Ext.P6 report. From Chemical Examiner's Certificate, it was revealed that sample contained 34.77% of ethyl alcohol by volume. After completing the investigation, he submitted the charge sheet before the Judicial Magistrate of the First Class, Hosdurg, where it was taken to file as C.P.No.179/1999. Finding that the offence alleged is exclusively Crl.A.No.968 of 2003 3 triable by the Court of Session, the learned Magistrate, by order dated 5/10/1999, committed the case to the Court of Session from where it was made over to the Additional Sessions Judge. 3. Appellant, in response to the process issued, appeared before the Additional Sessions Judge and pleaded not guilty to the charge when framed and read over. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts. P1 to P7 and MOs 1 to 3 were marked. Appellant took a defence of total denial. No defence evidence was let in. After trial, the learned Additional Sessions Judge arrived at a conclusion of guilt, consequent to which the conviction and sentence under challenge were passed. 4. I have heard Adv.Sri.Swathi Kumar, the learned counsel appearing for the appellant as well as the Government Pleader. Perused the judgment and evidence. 5. The recovery of the contraband is sufficiently proved by the evidence of PWs 1 and 4 coupled with Exts.P1 and P2. PWs 2 and 3, who are independent witnesses turned hostile. By Ext.P6, it is revealed that sample contained 34.77% by volume of ethyl alcohol. Crl.A.No.968 of 2003 4 The only argument advanced by the learned counsel for the appellant is that the identity of the appellant was not proved. The learned counsel took me through the evidence of PWs 1 and 4 as well as the judgments impugned. PWs 1 and 4 would depose that they were not familiar with the appellant. Therefore, it is to be presumed that the name of the appellant was mentioned in Exts.P1 and P2 on the basis of hearsay information. According to PW4, the appellant was identified by the police constable, P.C.Sebastian. There is no case for PW4 that during the course of investigation, the appellant was arrested or that his identity was ascertained during the course of investigation. Prosecution has no good explanation for not examining the police constable, P.C.Sebastian, who alleged to have identified the appellant. The result is that there is no direct evidence proving the identity of the appellant. Since PWs 1 and 4 had not identified the appellant at the spot or during the course of investigation, their evidence identifying the appellant for the first time in the witness box is not admissible to sustain conviction. For want of non-examination of the police constable, Sebastian, who alone was familiar with the appellant, the prosecution should fail. Crl.A.No.968 of 2003 5 Therefore, the conviction and sentence under challenge are not sustainable and liable to be set aside. In the result, this appeal is allowed. While setting aside the conviction under challenge, the appellant would stand acquitted. The fine amount, if any deposited shall be refunded. sd/- P.S.GOPINATHAN, JUDGE su/- True copy P.A to Judge