IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRL.A.No.1801 of 2003 ( ) ------------------------------- SC.417/2000 OF ADDL. SESSIONS JUDGE (ADHOC)-II, KASARAGOD .................... APPELLANT: 1ST ACCUSED: -------------------------------- A. BALAKRISHNA NAIK, S/O. NARAYANA NAIK, AMEY ROAD, KASARGOD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT & STATE: ----------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KUMBLA POLICE STATION. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEING FINALLY HEARD ON 06/02/2008, ALONG WITH CRL. A. NO.1803/03, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal Nos.1801 & 1803 of 2003 ------------------------------------------------ Dated this the 6th day of February, 2008 JUDGMENT These appeals are filed respectively by the first and second accused convicted for offence under Section 55(a) of the Abkari Act and sentenced thereunder by the Additional Sessions Judge (Adhoc)-II, Kasaragod vide judgment dt.21/10/03 in S.C.417/2000. On conviction, they were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1 lakh each and in default to undergo rigorous imprisonment for a further term of three months each. Hence, these appeals challenging the conviction and sentence so passed against the appellants. 2. The prosecution case is that at about 13.30 hours on 30/04/98, the appellants were found transporting 3000 packets of Karnataka made arrack each packet containing 100 ml. of Crl. Appeal Nos.1801 & 1803 of 2003 -2- arrack in Maruthi car bearing registration No.KL-14-A-7413 near Shiriya bridge in Shiriya village by PW5 and party. Consequent on detection of transporting of arrack by the appellants, PW5/the Sub Inspector of Kumbla Police Station effected seizure of the contraband articles taking also samples therefrom for chemical analysis and effecting seizure of also the Maruthi car. Coming back to the Police Station, he registered Crime NO.78/98 of Kumbla Police Station against the appellants under Section 55(a) of the Abkari Act drawing up Ext.P5 FIR in that behalf. He submitted forwarding note to court to have the contraband article subjected to chemical examination. Consequent on his transfer from Kumbla Police Station, the further investigation in the case was conducted by PW7, his successor in office. On completion of the investigation, Final Report was submitted Crl. Appeal Nos.1801 & 1803 of 2003 -3- before the Judicial First Class Magistrate's Court, Kasaragod where the case was registered as C.P.425/99. 3. After complying with all legal formalities, the learned Magistrate committed the case to the Sessions Court, Kasaragod division vide C.P.425/99. Before the Sessions Court, the case was registered as S.C.417/2000 and the Sessions Judge initially made over the case to the Assistant Sessions Court, Kasaragod from where the case was withdrawn and made over to the Additional Sessions Court (Adhoc)-II, Kasaragod. On appearance of the appellants in the court below, pursuant to issuance of summons, they engaged their own lawyer to defend the case on their behalf. Thereafter preliminary arguments were heard; charge was framed against the appellants for offence under Section 55(a) of the Abkari Act; was read over and explained to them and they Crl. Appeal Nos.1801 & 1803 of 2003 -4- were questioned. Thereupon, they pleaded not guilty and consequently, a trial of the case was conducted by the court below. Prosecution examined PWs.1 to 7 and got marked Exts.P1 to P19. 4. On the prosecution closing their evidence, the appellants were questioned under Section 313 Cr.P.C. Thereupon, they generally denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. According to the first appellant, he was driver of car of P.V.Ahmed, President of Chengala Grama Panchayath from 1996 to 1999; that during 1998 while himself and the Manager of P.V.Ahmed were returning from Mangalapuram PW5, the Sub Inspector who was conducting vehicle checking near Hanuman temple at Aarikkadi, intercepted their vehicle; that PW5 thereupon asked him to produce the vehicle records and his driving licence; that Crl. Appeal Nos.1801 & 1803 of 2003 -5- thereupon he showed all the records and then PW5 recorded the details contained in his driving licence in his diary and then returned the licence as also the vehicle records and enquired to him as to whether he is not driver of P.V.Ahmed and when he answered that he is driver of P.V.Ahmed he was asked to remain there till he is permitted to go and however, that after an hour, he was permitted to go and during all this time P.V.Ahmed and his Manager were standing near the car; that P.V.Ahmed had filed a complaint against PW5 alleging that he had been beaten by PW5 and that is pending; that this case is foisted against him on account of the animosity towards P.V.Ahmed; that he is not at all aware of this case and he has no connection with this case; that he was being arrested in the morning on 27/11/99; then he was asked to surrender his driving licence and accordingly, he surrendered his Crl. Appeal Nos.1801 & 1803 of 2003 -6- driving licence to PW5/the Sub Inspector and that he is innocent. 5. According to the second appellant, he has no connection at all with the car alleged to have been involved in the commission of the offence and that he is not having any connection with this case. 6. On the defence side the appellant in Crl. Appeal No.1801/03 who is the first accused has got himself examined as DW1. 7. The court below considered the case in the light of the evidence adduced as aforesaid; found that the appellants are guilty of offence punishable under Section 55(a) of the Abkari Act; convicted them thereunder and sentenced them as already stated. Hence, these appeals respectively by accused Nos.1 and 2. 8. It is vehemently contended before me by the learned counsel for the appellant in Crl. Appeal Nos.1801 & 1803 of 2003 -7- Crl.Appeal No.1801/03 that there is nothing to connect the appellant/A1 with the crime except his driving licence for which the appellant has his own explanation; that there is no identification of the appellant by PW1 or PW5; that the arrest of the appellant was only on 27/11/99; and only thereafter, his driving licence was produced in court and that will show that it had not been obtained from the car which was allegedly carrying arrack as is attempted to be made out and that description of his driving licence in Ext.P4/Seizure Mahazar is probably on the basis of the noting of the details of his driving licence in the diary of PW5; and that this case is one foisted against the appellant on account of the animosity PW4 entertained towards his employer P.V.Ahmed, President of the Chengala Grama Panchayath with whom PW5 is on inimical terms. Crl. Appeal Nos.1801 & 1803 of 2003 -8- 9. According to the appellant in Crl. Appeal No.1803/03, he has absolutely no connection with the car which was allegedly transporting arrack and that he was being arrested on 27/11/99; and he has not produced any agreement before PW5 as alleged evidencing transfer of the car in his favour; and that he was being unnecessarily implicated in this case and it is vehemently contended by his counsel that there is no material at all which justifies a conviction being entered into for the offence under Section 55(a) of the Abkari Act. 10. PW5 is the Sub Inspector who has allegedly detected the crime involved in this case. According to him, while himself and party were conducting investigation in Crime No.77/98, he received information that a Maruthi car transporting arrack is coming from Thalappady side and he went over to the Crl. Appeal Nos.1801 & 1803 of 2003 -9- National Highway near Shiriya bridge and when his jeep reached on the northern side of the Shiriya bridge Maruthi Car bearing registration NO.KL-14-A-7413 was coming in the opposite direction from Thalappady; that he gave signal to stop the vehicle and thereupon the car stopped a bit towards north of his jeep and two persons alighted from the car and took to heels and though himself and party chased them, they could not be apprehended. He has no case that the identity of the persons who took to heels alighting from the car was recognized then. According to him, on their examining the Maruthi car, two plastic bags were seen on the front seat and four plastic bags were seen at the back and on examination it was found that each bag contained 500 packets of 100 ml. illicit arrack manufactured in Karnataka; that eight packets from therein was opened and sample was taken in two bottles of 375 ml. Crl. Appeal Nos.1801 & 1803 of 2003 -10- each and was sealed and taken into banthavast in the presence of witnesses and taking into custody the rest of the articles as also the driving licence in the name of Balakrishna Naik/the appellant in Crl. Appeal 1801/03, he effected seizure of all those preparing Ext.P4 mahazar in that behalf and he registered the case going back to the police station drawing up Ext.P5 FIR in that behalf. According to him, he forwarded the sample to court preparing Ext.P6 property list in that behalf and submitted also Ext.P7 forwarding note to have the samples subjected to chemical examination. He further stated that the articles so seized namely the balance quantity of arrack excepting the eight packets which were opened to take sample all the rest were produced before the Assistant Excise Commissioner; and that giving request to the RTO, R.C particulars of the vehicle involved Crl. Appeal Nos.1801 & 1803 of 2003 -11- in the commission of the offence was obtained. He prepared Ext.P3 mahazar of the scene of occurrence and gave Ext.P8 report to court arraigning the appellant in Crl. Appeal 1801/03 as A1 in the case. Ext.P9 is the report of chemical analysis in relation to the sample of arrack forwarded for chemical analysis. According to PW5, the present SHO has filed Ext.P10 report reporting that 2992 packets of arrack produced before the Assistant Excise Inspector, Kasaragod on 04/05/98 had been entrusted back to the Police Station for safe custody along with the plastic bag wherein those packets were kept; and that by efflux of time and by attack of insects and rats all the material objects were destroyed and therefore, they were unable to produce those material objects in court. There is absolutely no record to show that the contraband articles namely arrack in 2992 Crl. Appeal Nos.1801 & 1803 of 2003 -12- packets along with the bag wherein those packets were packed was produced before the Assistant Excise Commissioner and the Assistant Excise Commissioner directed those material objects to be kept in safe custody at the Police Station itself. However, in view of Ext.P10 report it is obvious that the investigating agency was unable to produce the material objects before court to establish the seizure of as many as 3000 packets of Karnataka made illicit arrack as alleged. In cross examination, PW5 is asked as to whether the driving licence has been produced before court on the date on which it was allegedly recovered from the dash board of the Maruthi car. He has answered that it is incorrect to say that it was not produced but the fact remains that it was not produced before court till the appellant/A1 was arrested on 27/11/99. It was produced only thereafter on Crl. Appeal Nos.1801 & 1803 of 2003 -13- 09/12/99. 11. It is contended by the learned counsel that the driving licence was being obtained from the appellant/A1 on his arrest on 27/11/99 and was being produced before court; and that till then, the investigating agency was not having possession of the driving licence and in Ext.P4 seizure mahazar the details of the licence were being given based on the particulars noted by PW5 in his diary when the vehicle driven by him belonging to P.V.Ahmed, President of Chengala Grama Panchayat was intercepted and records examined. The contention of the appellant appears to be true in the circumstances as there is no convincing explanation at all by PW5 as regards the non-production of the driving licence of the appellant/A1 before the arrest of A1 on 27/11/99. Ext.P10 report furnished by the investigating officer in the matter of Crl. Appeal Nos.1801 & 1803 of 2003 -14- non-production of material objects before court is far from being satisfactory. Only eight packets were utilised for sampling and the balance 2992 packets of arrack had not been produced before court at any point of time and the vehicle also is not produced before court without obtaining any enabling orders in that behalf from court. Ext.P4 report goes to show that the 2992 packets of arrack as also the Maruthi Car used for transporting the arrack were entrusted with the Assistant Commissioner of Excise, Kasaragod. There is absolutely no evidence in the case as regards such an entrustment. The Assistant Excise Commissioner also is not cited as a witness. Consequently, therefore, the statement in Ext.P10 that the Assistant Excise Commissioner, Kasaragod entrusted back those material objects on production, for being kept in safe custody at the police Crl. Appeal Nos.1801 & 1803 of 2003 -15- station is something stated behind the back of the Assistant Excise Commissioner and without his knowledge and there is no evidence to establish the truth of what is stated in Ext.P10. Further, as regards the 2992 packets of arrack, the SHO, Kumbla has in his Ext.P10 report dt.14/07/03 stated that due to efflux of time the plastic bag which contained 2992 packets of arrack as also the arrack in plastic packets got destroyed by attack of cockroach and rats and so the prosecution is unable to produce it before court. It is strange that the Station House Officer had the audocity to report that plastic bags wherein 2992 packets of arrack had been packed as also the 2992 packets of arrack are destroyed by cockroach and rats and by efflux of time so as not to have any remains to be produced before court in evidence. I have no doubt that if at all the arrack in 2992 packets are not Crl. Appeal Nos.1801 & 1803 of 2003 -16- available it has either been consumed at the police station by the police themselves or they have sold it and misappropriated the proceeds. It is up to the higher ups in the department to take appropriate action against the staff concerned for such improper acts. However, fortunately, there is no mention that the cockroach and the rats have eaten away the Maruthi Car as well but the Maruthi Car also is not produced before court. 12. Coming to the prosecution case of the ownership of the Maruthi Car alleged to have been used in transporting the arrack also there is practically no investigation and A2 is unnecessarily arraigned as an accused without any material to support the case that he has purchased the Maruthi Car allegedly used for transporting arrack from PW6/B.M.Ali. PW6 has given evidence that he has purchased the car from PW2/Mohammed Ashraf who was the Crl. Appeal Nos.1801 & 1803 of 2003 -17- registered owner under Ext.P1 agreement; and that thereafter he sold that car to the appellant in Crl. Appeal No.1803/03 who is the second accused in the case about four - five years back under an agreement and that the said agreement had been handed over to the police. In cross examination he has stated that what was handed over to the police is only a photostat copy of the agreement. No attempt at all is made to trace out the original of the agreement if at all a photostat copy had been received by the police in the course of investigation from PW6. A suggestive question had been put in cross examination to the effect that PW6 continued to be the owner in possession of the vehicle and that he was giving statement before the police that he sold the vehicle to A2/Ganesh Naik for the purpose of getting himself exonerated, though no doubt the said Crl. Appeal Nos.1801 & 1803 of 2003 -18- suggestion had been denied by PW6. The further suggestion to PW6 in cross examination is that A2/Ganesh Naik was not having any transaction at all with him and that he is not at all acquainted with him. However, in the absence of any reliable evidence regarding the transfer of the vehicle by PW6 to A2 the appellant in Crl. Appeal 1803/03, it cannot be found that he was the owner in possession of the car in which allegedly 3000 packets of arrack was transported. 13. Even to support the case of detection and seizure, other than the testimony of PW5/the Sub Inspector who is alleged to have detected the crime there is only the evidence of PW1 a police constable who sates that he has accompanied PW5 in the detection and seizure. He has deposed that two persons alighted from the Maruthi Car and took to their heels and despite their attempt to Crl. Appeal Nos.1801 & 1803 of 2003 -19- apprehend them by chasing them they could not apprehend them. Obviously, he has no case as to who those two persons were or that he had occasion to see their face and identify them. His identification of A1 and A2 therefore, in court is not of any use to establish the case of the prosecution. In cross examination PW1 has further stated that even as they were alighting from the jeep the persons in the Maruthi Car had alighted and begun to take to their heels. The distance between the places where the two vehicles were stopped namely the jeep and the Maruthi Car was ten metres according to PW1. According to PW1, he is unable to memorise even as to the dress those persons were wearing but however, that at that time about ten persons had assembled there. None of those persons are cited as witnesses. Even attestors to Ext.P4 seizure mahazar are not examined. PW1 has gone to the extent of Crl. Appeal Nos.1801 & 1803 of 2003 -20- deposing in cross examination that he has not seen A1 before and that he is seeing him for the first time in court only, though in chief examination he has said that he knows A1 by sight. PW1 stated further that he is not aware as to whom the material objects were being entrusted. It has to be borne in mind that the material objects were as much as 2992 packets remaining after the sampling and it is too much for PW1 to say that he is not aware as to whom was those entrusted. At another portion of his statement in cross examination, he has also stated that he is seeing A1 for the first time in court when he is examined. However, he had made an attempt though futile to say that he could identify the culprits though they were chasing the culprits from behind, as the culprits were taking to their heels turning back and looking at them. However, the said version is unbelievable as he has stated that Crl. Appeal Nos.1801 & 1803 of 2003 -21- he has not stated so to the investigating officer. It is also worthy to note that no test identification parade was conducted in this case to have the culprits identified. When PW1 was specifically asked as to whether he was not making mention of the second accused as such only because he is found in the dock he does not give any answer and has kept silent. He has also stated that he does not know as to how the Sub Inspector opened the sample packets and also that he does not know as to who has signed on the samples as also the material objects though he denies the suggestion that no such occurrence as alleged has taken place. Thus, evidence of PW5 the detecting officer and of PW1 who has accompanied PW5 in the detection and seizure is not at all convincing to accept the prosecution case that the appellants were found transporting 3000 packets of illicit Karnataka made arrack in Crl. Appeal Nos.1801 & 1803 of 2003 -22- Maruthi Car bearing registration NO.KL-14A- 7413. 14. Now coming to the defence set up by A1, it is worthy to note that PW5 has admitted that P.V.Ahmed is Panchayath President and that he has filed complaint against P.V.Ahmed and P.V.Ahmed has filed complaint against him also and thus case and counter are pending. According to the first accused, as already discussed above his licence was being detained for some time by PW5 while the car of Panchayath President P.V.Ahmed was intercepted on the premise of vehicle checking and that PW5 has then made note in his diary the details of his driving licence; and that, that was being made use of to show that the said driving licence was seized from the Maruthi Car under P4 Seizure Mahazar. When the prosecution case is found to be unreliable by all means either due to shabby investigation Crl. Appeal Nos.1801 & 1803 of 2003 -23- or because the case is highly probabilised to be a foisted one and in the absence of any reliable evidence to establish the guilt in the appellants as alleged by the prosecution they cannot be found guilty. As rightly contended by the counsel for the appellants, it appears from the evidence that PW5 was foisting this case against the appellants and maliciously prosecuting them. The conviction of the appellants by the court below in the circumstances, is incorrect and on wrong appreciation of evidence and the conviction and sentence passed against them therefore, deserves to be set aside. 15. In the result, allowing these appeals, I set aside the conviction and sentence passed by the court below against the appellants and acquit them of the offence under Section 55(a) of the Abkari Act. Their bail bonds are canceled. Crl. Appeal Nos.1801 & 1803 of 2003 -24- 16. It is submitted that certain amounts have been deposited by the appellants pursuant to directions of this Court as a condition for suspension of sentence. If at all any such amount is deposited, the appellants will be entitled to have it refunded on application made in that behalf in the court below. The court below shall also release Ext.P18 driving licence of A1 as however, the details thereof is contained in Ext.P4 seizure mahazar and that is not challenged. K.P.BALACHANDRAN, JUDGE kns/-