IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.A.No. 1330 of 2003() ----------------------------------- SC.344/2000 OF ADDL. SESSIONS COURT (ADHOC-II), KASARAGOD. .................... APPELLANT/ACCUSED: ---------------------------------- KAZHAKKAKKARAN BALAN, 52/98 S/O. KANNAN, THAYYANIMUNDA, PALAVAYAL VILLAGE. BY MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... CRL.A.NO.1330 OF 2003 ............................................. Dated this the 17th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc)-II, Kasaragod in S.C.No.344/2000. The accused was found guilty under Section 55(g) of the Abkari Act and sentenced to undergo R.I for one year together with a fine of Rs. One lakh and a default sentence of two months. It is against that decision, the accused has come up in appeal 2. The points that arise for determination in the appeal are (1) Whether materials are sufficient to connect the accused with the crime (2) Is there anything to interfere with the decision rendered by the court below. 3. Points 1 and 2: For the sake of convenience, both the points are answered together. It is the case of the prosecution that on 25.8.1998 at bout 5.15 p.m, the accused was found in possession of 35 litres of wash for distillation of arrack at a distance of 6 meters from the lean to of his house. : 2 : CRL.A.NO.1330 OF 2003 According to the prosecution, on getting a reliable information that the accused had materials used for the distillation of illicit arrack, the police went to his house and as he was in the house, along with him went to the spot and near a coconut plant, they were able to find a Can having 35 litres of wash. Sample was taken, sealed and further proceedings were continued. It has to be borne in mind that in a case of this nature where the recovery is not from the possession of the accused physically and it is alleged to be from a place which belongs to him, there is a duty cast upon the prosecution to establish that the premises from where the wash was taken did belong to the accused and was in his possession. Now, according to the seizure mahazer – Ext.P4, the house number of the accused is given as E.P.P.X/175 and according to the prosecution it was from that compound the seizure had been effected. 4. As stated by me earlier, in a case of this nature, if the seizure is coupled with possession directly, then ownership of the properly may not loom large for the reason that it is the person who is directly apprehended. Now, I will : 3 : CRL.A.NO.1330 OF 2003 refer to the evidence available in the matter. All the independent witnesses including the seizure mahazer witnesses and scene mahazer witnesses had turned hostile to the prosecution. So, virtually, the evidence consists of the version of the official witnesses. 5. PW5 is the Special Village Officer at the relevant point of time. He had produced Ext.P1 and he would depose in the chief examination that the building E.E.P.X/175 is in the possession of Baby. He also submitted that the plan was prepared as directed by the police. In the cross examination, he would depose that he has not verified with reference to the ownership of the house. He does not know to whom does the house belongs. He has not seen any documents to say who is in possession of the property comprised in RS.246 and to crown all these things he would depose that the plan was prepared in accordance with the scene mahazer. 6. PW6 is the Village Officer. In the chief examination he would depose that in house No.E.E.P.X/175 the accused and his family were residing. In the cross examination he : 4 : CRL.A.NO.1330 OF 2003 deposed that he has not verified any document to show that who is the owner of the building. He has not seen any document to prove that the accused had property in R.S.246. When a suggestion is put to the effect that whether this property forms a part and parcel of 4 acres and 6 cents possessed by Baby, he would say that he cannot state anything regarding that. 7. PW1 is the Head Constable who had accompanied PW7 at the time of the alleged search and seizure. He had spoken about his visit, the apprehension and seizing of the wash etc in the chief examination. In the cross examination he had admitted that he had not seen any document regarding the ownership of the building. He would also further depose that there is no boundary what so ever between the properties and it is an open paramba. He does not know who are the owners of the properties situated on sides. 8. PW7 is the person who had detected the case. He had also spoken in the chief examination with reference to the seizure mahazer. In the cross examination, he would : 5 : CRL.A.NO.1330 OF 2003 admit that he has not questioned the Executive Officer or Secretary of the panchayat to find out the ownership of the building E.E.P.X/175. He has not seen any document to show that the accused had any right in the property comprised in RS 246. He would further add that “ 9. So, it has to be stated that there is nothing to show the ownership of the house. There is nothing to show that the property belongs to the accused and further that there is no demarcating boundary what so ever with respect to the property from where the wash is alleged to have been seized. Therefore, it is imperative on the part of the prosecution at least to make an attempt to find and prove the ownership of the property and the possession of the property to establish and connect the accused with the crime. The Sub Inspect of Police or the Head Constable or the Village Officer by themselves are not competent to state from their memory with regard to who are in possession of the property in a particular area and when a person is : 6 : CRL.A.NO.1330 OF 2003 alleged to have committed serious offence, where the imprisonment is up to 10 years it is all the more the responsibility of these officers to satisfy the conscience of the court regarding these points. Those materials are lacking in this case. Therefore, in such circumstances, I have to hold that the materials are not sufficient to connect the accused with the crime and therefore he is entitled to be acquitted. 10. In the result, the criminal appeal is allowed and the conviction and sentence passed by the sessions judge so far under Section 55(g) is set aside and the accused found not guilty and is acquitted and set at liberty forthwith. If any fine amount is realised from the accused, it may have to be reimbursed him on appropriate application. M.N.KRISHNAN, JUDGE cl : 7 : CRL.A.NO.1330 OF 2003