IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 14TH DAY OF JANUARY 2011/24TH PAUSHA 1932 CRL.A.No. 372 of 2008 ( ) ------------------------- AGAINST THE ORDER/JUDGMENT IN SC.1493/2006 of ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES), KOTTARAKKARA AGAINST THE ORDER/JUDGMENT IN CP.177/2006 of J.M.F.C.-I,KOTTARAKKARA APPELLANT/APPELLANT: -------------------------------------------- SHAJI, C.NO.2474, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.NEEMA.T.V.(STATE BRIEF) RESPONDENT/RESPONDENT: ------------------------------------------ STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. R, BY ADV. PUBLIC PROSECUTOR, SHRI K S SHIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.372 of 2008 ----------------------------------------------- Dated 14th January, 2011. J U D G M E N T This appeal is filed challenging the conviction and sentence passed against appellant to undergo simple imprisonment for 2 years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months for offences under Section 8(1) read with Section 8(2) of the Kerala Abkari Act. Set off was allowed. 2. According to prosecution, on 6.6.2006 at about 6 p.m., accused was found carrying 3 lires of arrack in a can having 5 litres capacity, on the bund situated by the side of a stream and thereby he committed offences under Section 8(1) read with Section 8(2) of the Kerala Abkari Act ('the Act' for short). To prove the prosecution case, PW1 to PW5 were examined and Exts.P1 to P9 and MO1 and MO2 were marked. The accused did not adduce any evidence, but denied the allegations made against him. 3. According to accused, this case is falsely foisted against him at the instance of Sri. Pradeep, a Police Constable, since the appellant refused to admit his child in the school of Sri. Pradeep's brother. For shortage of students in the school, the Crl.Appeal No.372 of 2008 2 school was under a threat of closure. Nothing happened at the place, as alleged by prosecution. Sri.Pradeep is a witness to the mahazar (Ext.P1). The trial court after considering the evidence in detail found that accused did not let in any convincing evidence to prove the defence contentions. It is also held that the defence set up is highly improbable and unbelievable. It is also held that the scene of occurrence is a thoduvarambu by the southern side of Kurumayil culvert at a distance of 20 meters away from the culvert. It was also found that the evidence would establish that the accused was in possession of arrack. 4. The accused was undefended and Smt.Neema T.V. was appointed as State Brief. Heard. Perused records. From the cross examination and the defence set up by accused, it appears that there is a total denial of the incident. It is seen from the questions put in cross examination that there is no clarity regarding the place of incident and the prosecution case has to be rejected on this ground itself. 5. As per the charge framed by the court, the incident happened on the southern side of the culvert on the bund of a Crl.Appeal No.372 of 2008 3 channel (thoduvarambu). As per the mahazar prepared in this case(Ext.P1), the Excise party was coming by Vendar - Thatchanmukku road in a vehicle and it was stopped near the shop of one Gopalan Nair. The Excise party thereafter, was coming from east to west on the southern bund of the channel. When they saw the accused coming from the opposite side carrying the can, that is from west to east, he was apprehended from the said place. 6. PW1 and PW2 are independent witnesses and they denied the entire incident and they were declared as hostile. PW3 is the Preventive Officer who was present in the Excise party at the time of detection of the offence. He deposed in chief examination that the Excise party was travelling in a jeep on the Vendar - Thatchanmukku road and when they reached about 20 meters away from the culvert on the road, they saw the accused coming with a can and he was stopped and the articles were seized from his possession. In the cross examination, PW3 deposed that the road to the place of occurrence lies in the south- north direction. From the evidence in the chief examination, it Crl.Appeal No.372 of 2008 4 will appear that the incident happened on the road which is lying in the south-north direction. 7. But, when PW3 was cross examined further, he deposed that the culvert was on the western side of the road. It was also stated that on the western side of the place of occurrence, there is a bund and that on the southern side, there is paddy filed. These answers would not reconcile with the lie of the road or the bund. He also stated that the Excise party were coming by the bund by the side of a paddy field. 8. PW5 is another witness, who was in the Excise party at the time of detection of offence. He is the Excise Inspector. He also gave evidence that the Excise party was coming on the Vendar-Thachanmukku road and when they reached about 20 meters away from the culvert, the accused was found coming from the opposite side. Therefore, it can only be on the public road, which was lying north-south. In the cross examination also, he maintained the very same stand regarding the place of occurrence. When a question was put that in Ext.P1 the details of the place of occurrence are not stated precisely, he denied the Crl.Appeal No.372 of 2008 5 same and stated that the place of occurrence is stated clearly in the mahazar (Ext.P1). 9. But, as referred to earlier, as per records the place of occurrence is not a road lying north-south, but it is a bund by the side of the channel which is lying east-west. It is stated by PW4, who is the Detecting Officer that on the northern side of the bund, there is a property of one Gopalan Nair, but as per Ext.P1 on the northern side of the bund, there is a channel. 10. Now coming to the evidence of PW4, the Excise Inspector, it can be seen that he stated that he had gone to the place of occurrence twice, but he could not say what was there on the southern side of the place of occurrence, which is a road. He stated that the incident happened on the southern side of the culvert. From the records and details in Ext.P1, on the southern side of the culvert, it can only be the road which lies north-south. In Ext.P1, the place of occurrence is a bund which is lying east- west. 11. Thus, the evidence is totally shabby regarding the place of occurrence. The witnesses were not able to convince the Crl.Appeal No.372 of 2008 6 court where exactly the incident happened. The evidence is totally inconsistent with the records. While in Ext.P1 and also in the charge framed by the court, the incident is stated to be happened on the bund situated by the side of a channel, from the evidence of the occurrence witnesses, it can be seen that the incident happened on the road which is lying north-south. In the above circumstances, it was the duty of the prosecution to establish that an incident happened at the place, as alleged by prosecution. This has not been done. 12. In spite of these facts discussed above, curiously enough, the lower court has come to a conclusion that the incident happened in the thoduvarambu lying on the southern side of the culvert, which is not consistent with the evidence adduced in this case. The prosecution has not proved beyond reasonable doubt that an incident occurred at the place alleged by prosecution. Hence, the conviction and sentence passed against the appellant are unsustainable and those are liable to be set aside. Crl.Appeal No.372 of 2008 7 13. In the result, the following order is passed : (i) The conviction and sentence passed against the appellant under Section 8(1) read with Section 8(2) of the Kerala Abkari Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offence under Section 8(1) read with Section 8(2) of the Abkari Act. (iii) The appellant is set at liberty forthwith. (iv) The appellant shall be released from custody, if his detention is not required in any other case. (v) The Registry shall issue release order forthwith. This appeal is allowed. Sd/- K.HEMA, JUDGE. tgs (true copy)