IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRL.A.No. 1894 of 2003(D) ------------------------ SC.292/2002 of ADDL. DIST. & SESSIONS COURT (ADHOC)-II, KOLLAM .................... APPELLANTS/ACCUSED 1 AND 2: ------------------------------------ 1. SUNILKUMAR @ EMPI SUNIL, S/O.VASUDEVAN, PULIVELIKONATHU PADINJATTATHIL VEEDU, MUZHIMATHIKADU MURI,KAREEPRA VILLAGE, KOTTARAKKARA. 2. MOHANAN @ POTTAN MOHANAN, S/O.MADHAVAN PILLAI, KRISHNALAYAM,@ CHENNALOOR POIKAYIL VEEDU, KUZHIMATHIKKADU MURI, KAREEPRA VILLAGE, KOTTARAKKARA. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENT/COMPLAINANT: --------------------------------- STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. MUHAMMED PUZHAKKARA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. A. No. 1894 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2008 JUDGMENT The two appellants in this appeal and another were tried before Additional District and Sessions Court (Adhoc-II), Kollam, for the offence punishable under Section 55 (a) (i) of the Abkari Act. The trial court found them guilty under Section 55(a) and they were accordingly convicted and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs.1lakh each. In default of payment of fine, the accused were directed to suffer imprisonment for one year each. 2. This appeal is at the instance of accused 1 and 2. The other accused has challenged the above order in Crl.A.No.218/04, to which I will refer to a little later. 3. The prosecution case in brief was that the Assistant Sub Inspector of Police, Ezhukone police station had, on receipt of a secret information that contraband liquor was being sold from a garden land near to Kuzhimathikadu Sreekrishna Temple, proceeded to the above place along with some constables and found the Crl.A.No.1894/03 -:2:- accused with the contraband liquor in their possession. The alleged detection was at about 10.10 a.m. on 2nd November, 2000. According to the prosecution, accused No.1 was found carrying a bottle with a capacity of 1½ litters containing some liquor and also a glass tumbler. Accused No.2 was found carrying a black plastic Can containing about 7 litres of liquor. A white Can having a capacity of 35 litres containing spirit was also found near accused No.3. As soon as the accused saw the police party, they fled the scene. The liquor contained in the bottle was confirmed as arrack by taste and smell. Similarly, the liquor in the white Can was identified as spirit, on taste and smell. The liquor in the black Can was found to be arrack through a similar process. According to the prosecution, the formalities of seizure, preparation of mahazar etc were completed at the scene of occurrence itself in the presence of witnesses. The Sub Inspector of Police conducted the investigation and laid the charge sheet later. 4. The prosecution examined PWs 1 to 5 and marked Ext.P1 to P5 and MO1 to MO5 series. Though no witness was examined on the side of the defence, Exts.D1 to D2 were marked. The learned Crl.A.No.1894/03 -:3:- Sessions Judge found that the prosecution had succeeded in proving the charge against the accused and convicted and sentenced them as mentioned earlier. 5. PW1 deposed before the court that he did not know the accused. He admitted that the signature found in Ext.P1 was put by him. He did not remember the date on which it was signed. He further asserted that he had not seen the accused running away on seeing the police party. He also stated that he had put his signature in Ext.P1 as instructed by the police. He was informed that it was in connection with an assault case. 6. PW2, the Head constable attached to the police station concerned stated that he had accompanied the Assistant Sub Inspector(PW4) and found the three accused standing in the property of one George with the contraband liquor. He stated that accused No.1 was holding MO3 bottle containing arrack which was later identified by taste and smell. Accused No.1 was also holding MO4 glass in his hand. Accused No.2 was holding a black Can containing arrack in his hand. Accused No.3 was also standing near the other two accused. MO2 white Can containing 30 litres of spirit was found Crl.A.No.1894/03 -:4:- near the accused. PW2 stated that the accused ran away from the scene on seeing the police party. But, he asserted that he identified the three accused. According to this witness, two samples each from the bottle, black Can and white Can, were taken. Samples and Cans were sealed. Labels were also put on the sample bottles. PW4 prepared Ext.P1 mahazar in which signatures of the witnesses were obtained. In cross examination of the witnesses, they stated that, the police party had chased the accused but they could not apprehend them. Significantly, the witnesses stated that they knew the three accused quite well for a long time. 7. PW3 who was another head constable attached to the Ezhukone police station more or less corroborated the version given by PW2. He also spoke about the recovery, sampling etc. But in cross examination the answers given by this witness with regard to sampling was totally in consistent and confusing. I will deal with the above aspect a little later. 8. PW4 the Assistant Sub Inspector spoke about the detection, recovery, sampling etc. He stated that after seizure and sampling, the contraband articles were handed over to the Sub Inspector. He Crl.A.No.1894/03 -:5:- stated that he had prepared Ext.P1 mahazar. In cross examination this witness stated that he could not say who had taken the contraband to the Court. He further stated that he was also holding charge of the station on that day. He admitted that the accused were standing at a distance of 125 meters when they saw the police party. He asserted that he knew the two accused well. All of them were vendors of illicit arrack and were involved in several other cases. He further stated that the police party came back to the scene of occurrence after chasing the accused for about 10 ms. In cross examination this witness further stated that paper slips were not seen on MO5 series. He also conceded that he could not say definitely from which where MO5 series of samples were lifted. He denied the suggestion that he did not produce the sample bottles before the court since samples were not lifted from the scene of occurrence. The other suggestion put to him that he had prepared Exts.P1 and P2 much later, even without going to the alleged scene of occurrence was also denied by him. PW5, the Sub Inspector, had conducted the investigation. He prepared property list and forwarded the same to the court. In cross examination he stated that PW4 had Crl.A.No.1894/03 -:6:- not given any report about the crime in question. 9. Having gone through the evidence of the witnesses examined on the side of the prosecution, I am not at all satisfied that the trial court was justified in holding the accused guilty. The evidence of PWs 2 to 4 does not inspire any confidence. It is true that these witnesses have stated that the accused were found in the garden land belonging to one George with MO1 black Can containing arrack, MO2 Can containing spirit and MO3 bottle, yet again containing arrack. The evidence given by these witnesses with regard to the recovery, sampling etc. is far from satisfactory. It was noticed by the trial court itself that PW2 in his cross examination had stated that there was no whisper in the mahazar as to how many bottles of sample were taken. He also admitted that no paper slip was scene affixed on MOs 1 to 5. Inconsistent versions were given by these witnesses about the quantity of article seized. A close scrutiny of the depositions of the three material witnesses of the prosecution will only give an impression of artificiality. The definite case of the defence was that this case was foisted on them by the Assistant Sub Inspector on some anonymous phone call. In this Crl.A.No.1894/03 -:7:- context, it may be noticed that, PWs 2 to 4 had unequivocally stated that the three accused were involved in several other similar offences and that they were regular offenders of illicit liquor. Therefore, the suggestion made by the defence to the witnesses that they were made easy targets in this case at the behest of PW4 cannot be totally disregarded or disbelieved. 10. It may also be pertinent to note that PW5 had stated that he had produced the sample bottles and the Cans before the court on the same day when the alleged recovery was made. But Ext.P3 shows that it was received at the Court only on 6th November, 2000. No explanation is forthcoming from the prosecution for the delay. There is also no evidence on record to show that the sample bottles and other material objects were kept in proper custody at the police station. Ext.P1 Mahazar which was allegedly prepared at 10.10. a.m. on November 2, 2000 was received in the court only on the next day. Similarly, Ext.P2 FIR which was recorded at about 11.15 a.m. of November 2, 2000 is seen to have been received at the court only at 10.30 a.m on November 3, 2000. Yet again there is no explanation for the delay. Crl.A.No.1894/03 -:8:- 10. Having regard to the totality of facts and circumstances and having perused the evidence adduced by the prosecution, I have no hesitation to hold that the appellants cannot be found guilty of the offence under Section 55 (a) of the Act. They are undoubtedly entitled to get the benefit of doubt. 11. In this context it may also be noted that, Crl.A. No.289/04 preferred by accused No.3 in the above case was allowed by this court by judgment dated July 21, 2006. Therefore, the order of conviction and sentence passed by the trial court against the appellants is set aside. Appellants are acquitted. Criminal Appeal is allowed. The amount of fine, if any paid by the appellants, shall be refunded to them if a motion is made in this regard. (A.K.BASHEER, JUDGE) ttb Crl.A.No.1894/03 -:9:-