IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 10TH DAY OF JULY 2009/19TH ASHADHA 1931 CRRP.No. 652 of 2002 -------------------- CRA.50/1999 of SESSIONS COURT,THRISSUR CC.68/1998 of J.M.F.C.,VADAKKANCHERRY ......... REVISION PETITIONER/APPELLANT: OUSEPH, S/O. VAREED, KUMBALANGAD DESOM, WADAKANCHERY VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS.SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL RESPONDENTS/RESPONDENTS: 1. EXCISE RASNGE INSPECTOR, WADAKANCHERY EXCISE RANGE, WADAKKANCHERRY. 2. STATE OF KERLA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-07-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. ------------------------------------------- Crl.R.P.No.652 of 2002 ------------------------------------------- Dated this the 10th day of July, 2009 ORDER Revision petitioner was convicted and sentenced for offence under Section 55(a) of the Abkari Act to undergo rigorous imprisonment for a period of one year and to pay a fine of `.25,000/- and in default to undergo rigorous imprisonment for a period of three months. In appeal, the Sessions Court confirmed the conviction, but altered the sentence to three months' rigorous imprisonment. This revision is filed against the said conviction and sentence. 2. According to prosecution, on 04.01.1997 at about 6.30 p.m., while PW1, the Excise Inspector and party, including PW4 and another official witness, were on patrol duty in Kumbalagad desom, they saw the accused carrying a can containing arrack along the road in front of the house of one Sreedharan, PW3. On examination of the article, it was found to contain about 2.5 litres CRRP 652/02 2 of arrack. The accused was arrested and on questioning, he took out aluminum can, pot etc., which are marked as MOs 2 to 4, fifteen yards away from the first place of recovery near a paddy field. Samples were taken from the arrack seized and mahazar- Ext.P2 was also prepared and articles were seized. Ext.P1 occurrence report was prepared and complaint was filed alleging offence under Section 55(a) of Abkari Act. 3. To prove the prosecution case, prosecution examined PWs 1 to 4 and marked Exts.P1 to P3 and MOs.1 to 4 on its side. The accused denied the allegations and contended that certain contraband articles were seized by the Excise Officials in abandoned state and he was falsely implicated in the offence. The trial court found that prosecution established its case beyond reasonable doubt against the accused. It was held that recovery of illicit arrack was effected from the hands of accused, for which, he had no explanation. The court below found that PWs 2 and 3 were speaking falsehood before the court, after witnessing the recovery, with a view to help the accused, who belongs to same locality. The appellate court confirmed the conviction and it was CRRP 652/02 3 held that prosecution proved that accused was carrying illicit arrack with him through public road and hence, offence under Section 55(a) of the Abkari Act was made out. Reliance was placed upon the evidence of PWs 1 and 4. 4. From the judgments of the courts below, it appears that accused was convicted for possession of illicit arrack on the basis of evidence of PWs 1 and 4. Evidence of PWs 2 and 3, who are independent witnesses, was rejected by the trial court and held that they were speaking falsehood in favour of accused. Both the courts below relied upon the evidence of PWs 1 and 4 alone to enter a conviction against the accused. 5. The accused has a case that some contraband articles were seized, for which, a case was falsely registered against him and that he was not in possession of the articles. PW1 was the detecting officer, who was the Excise Inspector and PW4, the Preventive Officer, witnesses the search and seizure. They deposed in the chief examination that while they were on patrol duty and when they reached in front of the house of PW3 at Kumbalangad desom, they saw accused standing on the public CRRP 652/02 4 road holding a can. 6. PW2 and PW3, the attesting witnesses, deposed before court that they had not seen any article being seized from the possession of accused. PW2 also stated that accused was not present at the time when he signed Ext. P2 from a teashop. He did not know the contents of the mahazar. PW3 stated that the signature in Ext.P2 belongs to him, but did not see any article being seized from the accused by the Excise officials. He did not know the contents of the mahazar and that accused was not present at the time when seizure was effected. 7. From evidence of PW2 and PW3, it cannot be said that a search was conducted on accused or that contraband articles were seized from accused. It is true that they admitted their signature in Ext.P2 mahazar. According to them, they did not know the contents of Ext.P2. PW2 and PW3 were, however, not declared as hostile. The question is whether Ext.P2 contains the correct details or not, so as to come to a conclusion whether search was witnesses by two independent witnesses and such witnesses were called upon to witness the charge. CRRP 652/02 5 8. PW1 is the detecting officer. He specifically deposed in cross-examination that attesting witness PW2 did not see any article being recovered. Thus, he himself denied the correctness of the contents of Ext.P2. Though PW2 signed the mahazar as having witnessed the search, such a fact is not correct, going by admission of PW1 himself. Thus, evidence of PW1 is consistent with the evidence given by PW2, who stated that he had not seen any seizure being effected from the accused. PW1 has not stated or explained why PW2 was not called upon to witness the search. 9. As per Section 36 of the Abkari Act, the officer who conducts the search has to call upon at least two independent witnesses for the search. If all such witnesses are not called upon to witness the search and if there is no explanation for non- compliance of Section 36, the search will be vitiated as held in the decision reported in Ramachandran Nair v. State (1990 (1) KLT 44). Thus, there is clear violation of Section 36 of Abkari Act. 10. This is a case, where evidence of PW1, the detecting officer, corroborates the evidence of PW2, who is an independent CRRP 652/02 6 witness and it shows that PW2 was not called upon to witness search. The correctness of Ext.P2 is also doubtful. Both the courts below have lost sight of this fact. It is also seen that the courts below have not considered the effect of non-compliance of Section 36 of Abkari Act and the facts, which are brought out in cross-examination of the relevant witnesses, establish non- compliance of Section 36 of the Act. This itself is sufficient to set aside the conviction and sentence passed against revision petitioner. 11. It is not the alleged seizure of MO2 to MO4 which will establish guilt of accused, even if it is entirely accepted. As per the evidence, MOs 2 to 4 were recovered at the instance of the accused, as per prosecution case. But, it appears that from evidence of PWs 1 and 4 that all those articles were found by the side of paddy field. Therefore, there is nothing to show that accused was in possession of such articles. Merely because some articles are found in a paddy field belonging to somebody, accused cannot be made responsible for possession of such articles. It is brought out from the evidence that no investigation CRRP 652/02 7 was conducted with respect to ownership or possession of places from where articles were seized. The court below has also not take evidence relating to second recovery as a circumstances to hold accused guilty. 12. The alleged information given by the accused to the Excise officials is not in evidence and therefore, there is no evidence which incriminates the accused with respect to possession or recovery of MOs 2 to 4. It can also be seen that evidence relating to exact nature of the place from where MOs 2 to 4 were seized is inconsistent with the evidence of PWs 1 and 2. 13. At any rate, conviction and sentence passed against petitioner cannot be sustained in the light of the evidence adduced, since it would appear from the evidence that there was non-compliance of Section 36 of Abkari Act and for such non- compliance, no explanation was offered by the detecting officer, who himself detected that one of the independent witnesses have not witnessed the search etc. The conviction is vitiated because of non-compliance of Section 36, which fact is not taken note of by the trial court or the appellate court. The courts below CRRP 652/02 8 committed illegality in convicting the accused in the absence of non-compliance of Section 36 of the Abkari Act. In the result, the following order is passed: 1. The conviction and sentence passed against the revision petitioner accused under Section 55(a) of Abkari Act are set aside. 2. The accused is found not guilty of offence under section 55(a) of Abkari Act and he is acquitted of the said Section. He is set at liberty forthwith. This revision petition is allowed. (K.Hema, Judge) krs CRRP 652/02 9 K.Hema, J. -------------------------- Crl.R.P.No.652 of 2002 ---------------------------- ORDER 10th July, 2009