IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 CRL.A.No. 1952 of 2010(D) ------------------------ SC.649/2004 of ADDL.SESSIONS COURT (ADHOC I), KASARAGOD CP.314/1998 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... APPELLANT: --------------------- M.P.MOHAMMED ABDULLA @ SALTHU, S/O.ABDULLA, C.NO.8453, CENTRAL PRISON, KANNUR. BY ADV. SMT. SAINU B (STATE BRIEF) RESPONDENT: ------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. -------------------------------------- CRL.A.NO. 1952 of 2010 --------------------------------------- Dated this the 8th day of July, 2011 JUDGMENT The appellant is the sole accused in S.C.No.649/04 of the Court of Additional Sessions Judge (ADHOC I) Kasargode and his challenge in this appeal is against the conviction and sentence imposed on him in the above sessions case. 2. The allegation against the accused is that he along with accused Suresh had transported 4000 packets each containing 100 ml of arrack produced in the State of Karnataka, in a maruthi van bearing registration No. BLB 3997 along the public road near Mangalpady Bridge at about 7.35 pm on 24.10.97 in contravention of Abkari Act and Rules and thereby committed the offence punishable under Section 55(a) of Abkari Act. 3. On the basis of the above allegation Ext.P4 FIR was registered on 24.10.97 and thereafter on completing the investigation the police preferred report before the Judicial First Class Magistrate Crl.A.No.1952 of 2010 : 2 : Court Kasargode and by proceeding dated 1.4.2000 in C.P.314/98 the learned Magistrate committed the case to Sessions Court from where the case is made over to the trial court. Though there were two accused involved in the offence, as the other accused was absconding, the appellant herein alone faced the prosecution in the above sessions case. On producing the accused a formal charge was framed under Section 55(a) of Abkari Act which was read over and explained to the accused and he pleaded not guilty and denied the charge. Consequently, the prosecution adduced evidence consists of deposition of PW1 to 5 and Ext.P1 to P7. No evidence was adduced from the side of the defence. Finally, the trial court found that the prosecution has succeeded in establishing the case against the accused and accordingly the trial court has found that the appellant is guilty of the offence under Section 55(a) of Abkari Act and on such conviction the trial court sentenced the accused/appellant to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1,00,000/-(rupees one lakh only). In default he is directed to undergo imprisonment for a further period of one month. It is the Crl.A.No.1952 of 2010 : 3 : above conviction and sentence challenged in this appeal. 4. As the appellant is undergoing imprisonment in pursuant to the impugned judgment he preferred this appeal from jail and accordingly, Smt. Sainu B is appointed as advocate to prosecute the appeal for and on behalf of the appellant. Thus I have heard Smt. Sainu B, advocate appearing for the appellant and learned public prosecutor. 5. PW3 is the Assistant Sub Inspector of police Badiadka who detected the offence. According to him on 24.10.97, when he was engaged in highway patrolling and at about 19.30 hours when himself and his party while waiting on Mangalpady Bridge, in pursuant to an information he received that a maruthi van with arrack form Mangalore was coming along the national highway, PW1 and others found a maruthi van bearing registration No. BLB 3997 coming from Mangalore side. On seeing it PW3 gave signal to stop it. But on seeing that the speed of the vehicle is not reduced, inspite of the signal PW1, driver of police jeep put the jeep across the road and made the van stop. According to PW3, immediately Crl.A.No.1952 of 2010 : 4 : thereafter two persons jumped out of the maruthi van and took on their heels. According to the prosecution, one of them was chased and caught hold and PW3 identified that it is the present accused/appellant is the person so red handed. Accordingly the accused was brought back to the maruthi van and on inspection 8 bags were found in it. According to the prosecution, on inspection it turned out that the bags contained 4000 packets each containing 100 ml arrack, which produced in the State of Karnataka. All the bags were identical. The appellant/accused was arrested and six packets were taken from the van and contents of 3 packets each were drawn into a separate bottle which were sealed and labeled for sample. Thus the seizure was effected as per Ext.P2 seizure mahazar. According to the prosecution the accused/appellant who alone caught from the spot disclosed the name of the other accused to PW1 as T.M. Suresh. He was the person who drove the van. According to the prosecution thereafter PW1 brought the arrested person and contraband article to Kumbla police station and thus the accused and seized articles were entrusted with the station house Crl.A.No.1952 of 2010 : 5 : officer, Kumbla police station. PW1 is the driver of the jeep and PW2 is the independent witness cited by the prosecution to prove the seizure and arrest of the accused. PW4 was the then Sub Inspector of police, Kumbla police station to whom PW3 handed over the seized articles, accused and other documents and the samples were in the safe custody of PW4. PW5 is the Sub Inspector of police who succeeded PW4 as Sub Inspector of Kumbla Police Station. 6. During the trial the defence had argued that PW3 being the Assistant Sub Inspector of police has no authority under the Abkari Act to detect such offence. In support of the above submission the defence placed reliance on the notification with SRO No.321/96 dated 29.3.96. In support of the above submission the defence placed reliance upon this Court's decision reported in 1989 (2) KLT 58 (Hassan Vs. State of Kerala) The other point raised by the defence is that there are no independent witnesses to corroborate the evidence of official witnesses. Another point raised by the defence is that there is no evidence to show that the accused Crl.A.No.1952 of 2010 : 6 : imported arrack from the State of Karnataka to State of Kerala. 7. Smt. Sainu B, learned counsel appearing for the appellant relying upon the decision of this Court in Sabu Vs. State of Kerala reported in 2007 (4) KLT 169 submitted that PW3 who being an Assistant Sub Inspector of police is not an authorised officer to detect and investigate offence under the Abkari Act and therefore the appellant is entitled to get an acquittal. It is also the submission of learned counsel that except the interested evidence of official witnesses, there is no independent witness to substantiate the prosecution case and therefore, according to the learned counsel on that ground also the appellant is entitled to get an acquittal. 8. On the other hand learned public prosecutor Sri P.A. Salim submitted that this is not a case where the police has not cited any independent witnesses but the independent witnesses who cited to prove the seizure and arrest turned hostile. Therefore, according to the learned public prosecutor, in the absence of any discrepancies and impropriety of evidence of official witnesses there is no legal bar in accepting this evidence and acting upon it. Learned public Crl.A.No.1952 of 2010 : 7 : prosecutor has no contention that the decision cited by the counsel for appellant is not applicable in the preset case. 9. In the light of the rival pleadings and in view of the facts and circumstances involved in this case the question to be considered is whether the prosecution has succeeded in establishing the case against the appellant based upon the alleged seizure and arrest effected by PW3, the Assistant Sub Inspector of police, and whether the trial court is justified in convicting the appellant. Admittedly, the alleged seizure and arrest of appellant was conducted by PW3 who was then working as an Assistant Sub Inspector in the police department and he is the officer who detected the crime. This Court, in the decision cited supra has held that Assistant Sub Inspector is not an authorised officer to detect and investigate the offence under the Abkari Act. If that be so, in the present case the alleged seizure and arrest and the evidence thereon will render as illegal. It is also relevant to note that to substantiate the case of the prosecution the other evidence available on record is that of PW1 the police jeep driver. Being a police driver who was Crl.A.No.1952 of 2010 : 8 : along with PW3 had deposed in favour of prosecution. But his evidence is not corroborated by any independent source. Thus on exclusion of the inadmissible evidence of PW3, since he is not a competent officer, absolutely there is no evidence to connect the appellant with the alleged crime. Thus in the absence of any convincing, material and acceptable evidence it cannot be said that the prosecution has succeeded in proving the case against the appellant beyond reasonable doubt. Therefore, I am of the opinion that the appellant is entitled to get an acquittal and consequently the conviction recorded by the trial court and the judgment impugned are set aside. 10. In the result this appeal is allowed, setting aside the judgment dated 7.5.2005 in S.C.No.649/04 of the Court of Additional Sessions Judge (ADHOC I) Kasargode and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty. As this Court has already found that the appellant is not guilty and he is acquitted of all the charges levelled against him in Crl.A.No.1952 of 2010 : 9 : S.C.No.649/04 of the Court of Additional Sessions Judge (ADHOC I) Kasargode, he is entitled to get released from the jail forthwith if he is not required in any other case. Therefore, the registry is directed to forward the gist of this judgment forthwith to the Superintendent, Central Prison, Kannur for appropriate action. Sd/- V.K. MOHANAN, JUDGE //True copy// P.A. To Judge. kp/