IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRL.A.No. 2101 of 2003() ---------------------------------- SC.30/2001 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT(S): ACCUSED: -------------------------------------- VIDYADHARAN, AGED 50 YEARS, S/O. SANKARAN, THARAYIL VEEDU, MUNDARAKANAMA, VAYAKKARA. BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH SRI.K.MOHANDAS SRI.M.SANTHOSHKUMAR RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. THE SUB INSPECTOR OF POLICE, CHITTARIKKAL POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2101 of 2003 ------------------------------- Dated this the 9th day of April, 2010. J U D G M E N T The accused is the appellant who challenge the judgment dated 18.12.2003 in S.C.No.30/01 of the Court of Addl. Sessions Judge (Ad hoc-1), Kasaragod, by which the accused stand convicted u/s.55(g) of the Abkari Act and consequently imposed a sentence of imprisonment and fine. 2. The prosecution case is that on 29.3.2000 at about 14.05 hrs. the accused was found in possession of 70 ltrs. of wash in a blue plastic container at the place belonging to one Maduthumchalil Johny at Chemmaramkayam of Beemanady Village. On the basis of the above allegation, Crime No.60/2000 in Chittarikkal Police station was registered and after investigation, a report was filed in the Court of Judicial First Class Magistrate-I, Hosdurg whereupon C.P.No.67/2000 was instituted and by an order dated 15.11.2000 therein, the learned Magistrate committed the cases to the 2nd Sessions Court and the case was received as S.C.No.30/01 and made over to the Crl. APPEAL No.2101 of 2003 2 Court of Sessions Judge, Hosdurg, but subsequently, the same was withdrawn and transferred to the trial court for disposal. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed u/s.55(g) of the Kerala Abkari Act, which was read over and explained to the accused and he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consists of the oral evidence of Pws.1 to 3 and the documentary evidence such as Exts.P1 to P5. No evidence was adduced from the side of the defence. Material objects namely, blue plastic container and 16 ltr. capacity tin were identified as M.O.s 1 and 2. The accused denied all the incriminating circumstances and evidence, when he was questioned u/s.313 of Cr.P.C. and maintained a plea of total denial. On the basis of the above materials and evidence, the trial court found that the accused is guilty u/s.55(g) of the Abkari Act and accordingly he is sentenced to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs.1 lakh, in default of which he is directed to Crl. APPEAL No.2101 of 2003 3 undergo rigorous imprisonment for 3 more months. 3. I have heard Adv.Sri.A.Mohamed Mustaque, the learned counsel appearing for the appellant as well as the learned Public Prosecutor and also perused the evidence and materials on record. 4. Though the prosecution has cited altogether three witnesses to establish its case, only PW3 the Sub Inspector of Police, allegedly detected the crime deposed, in terms of the prosecution case whereas Pws.1 and 2, the independent witnesses who cited and examined to prove the seizure mahazar and scene mahazar etc. turned hostile. All the documents relied on by the prosecution and the material objects were proved through PW3. When PW3 was examined, he had stated that on 29.3.2000 at about 12.40 p.m., he got an information regarding the illicit distillation of arrack on the banks of Chemmaramkayam river and accordingly he proceeded to the spot in the departmental vehicle, along with the raiding party and also taken another private jeep with packing materials. Crl. APPEAL No.2101 of 2003 4 According to PW3, they reached at about 2 O'clock near the northern end of the Chemmaram bridge and 15 mtrs. east to that place he saw the accused, stirring the wash in a blue plastic container. According to PW3, he could see another tin containing 16 ltrs. of wash. According to PW3 on seeing the police, the accused, after having abandoned the contraband article, jumped into the river and escaped. Consequently, according to PW3 samples were drawn, as stated in Ext.P1 seizure mahazar and the contraband articles were also seized. Ext.P2 is the scene mahazar. According to PW3, after the seizure of the contraband article, he himself and party returned to the police station, wherein Ext.P3 FIR was registered. PW3 prepared Ext.P4 forwarding note and send the same to the court, on the basis of which the samples got analyzed and obtained Ext.P5 chemical report. Thus according to PW1, he had detected the crime and seized the contraband article but he could not arrest the accused as he had escaped from the spot. On the basis of the above evidence, the trail court found that the Crl. APPEAL No.2101 of 2003 5 accused/appellant is guilty. 5. The learned counsel for the appellant vehemently argued that, the identity of the accused has not been established by the prosecution beyond reasonable doubt. It is also the submission of the learned counsel that, the properties which allegedly seized on 29.3.2000, reached in the court only on 24.4.2000, after a delay of 25 days. It is pointed out that, there is no evidence regarding the proper custody of the contraband article. The learned counsel further pointed out that, the evidence of PW3 can not be relied without corroboration from independent source of evidence because of the particular facts and circumstances involved and the particular nature of the allegations in the case. 6. On the other hand, the learned Public prosecutor submitted that PW3, who had seen the accused at the place of occurrence, properly identified him in the court during the trial and there is no question of any mistaken identity. It is also pointed out that, PW3 and party went to the spot in pursuance to Crl. APPEAL No.2101 of 2003 6 an information received by him and consequently the contraband articles were seized and the seizure of the contraband article further strengthen the reliability of the information and therefore the evidence of PW3 can be safely acted upon. Thus according to the learned Public Prosecutor, the trial court is fully justified in its finding and conviction of the accused. 7. I have carefully considered the arguments advanced by both the counsels for the appellants as well as the learned Public Prosecutor and also gone through the evidence and materials on record. At the outset, it has to be noted that beside the Detecting Officer PW3, the only two witnesses cited and examined by the prosecution are that of Pws.1 and 2 who are independent witnesses from the locality. PW1 is an attester of Ext.P1 seizure mahazar. PW2 is the attester of Ext.P2 scene mahazar. Both the above witnesses had turned hostile. The remaining witness is that of PW3, the Detecting Inspector. In this juncture, it is relevant to note that even according to PW3, Crl. APPEAL No.2101 of 2003 7 when himself and party proceeded to the spot, he had taken another private jeep with packing materials and that is not a department jeep. If that be so, the driver of the said jeep would have been a better person to depose independently regarding the seizure and about the accused. But such person was not examined. None of the raiding party was also cited and examined by PW3. Thus the prosecution miserably failed to adduce best evidence, which was otherwise available and kept away such evidence from the scrutiny of the court. 8. In this juncture it is also relevant to note that, the place of occurrence is situated 15 kms. away from the police station. According to PW3, he went to the spot in pursuance to an information received by him. PW3 has no case that he had previous acquaintance with the accused. According to PW3, the accused ran away from the spot and jumped into the river and escaped and PW3 could not arrest him. I have repeatedly gone through the deposition of PW3 as to ascertain whether he had got any description regarding the appearance of the accused, so Crl. APPEAL No.2101 of 2003 8 as to identify the accused. But no such description is made in his deposition. He stated that, he came to know the details of the accused from the witnesses who examined as Pws.1 and 2 but they turned hostile and did not support the evidence of PW3. It is also pertinent to note that, after the so called incident on 29.3.2000 and till the commencement of the trial, no step was taken by PW3 or any other police personnel to arrest the accused, atleast to enquire regarding the wear abouts of the accused. Had the accused arrested at any time after the date of occurrence and before the commencement of the trial and an occasion for PW3 to confirm the identity of the accused, we can understand or we can assess the correctness of the depositions made by PW3 with respect to the identity of the accused. In the absence of any such proceedings or evidence especially in the absence of any independent witness, the version of PW3, that the accused is the person who ran away on seeing the raiding party can not be believed. So the prosecution miserably failed to establish the identity of the accused. Crl. APPEAL No.2101 of 2003 9 9. It is also relevant to note that, contraband article reached in the court only on 24.4.2000, even though the same were seized on 29.3.2000. There is no evidence as to who was the custodian of the said articles and whether the same was kept under safe custody or not and to that effect also absolutely there is no evidence. There is also no explanation for the delay. The above circumstances are also against the prosecution and consequently the benefit of doubt will go in favour of the accused. 10. In the light of the above discussions and the materials referred above, I am of the view that the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt and the accused is entitled to get the benefit of doubt. Consequently, the order of conviction recorded by the trial court is liable to be set aside and I do so. In the result, this criminal appeal is allowed setting aside the conviction and sentence imposed against the appellant/accused vide judgment dated 18.12.2003 in Crl. APPEAL No.2101 of 2003 10 S.C.No.30/01 of the Court of the Addl. Sessions Judge (Ad hoc- I), Kasaragod and the appellant/accused is acquitted of all the charges levelled against him. The bail Bond if any executed by the appellant shall also stand cancelled and he is set at liberty. The Crl.Appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/