IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 CRL.A.No. 1824 of 2003 --------------------------- SC.521/2000 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... APPELLANT: ACCUSED: ------------------------- K. ASHOKAN, S/O. KRISHNAN MANIYANI, MALANKAI, KALLINKOL, KARADUKKA VILLAGE, KASARAGOD. BY ADV. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENTS: RESPONDENT: ---------------------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT LAKSHMI RANI K.L THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. --------------------------------------------------- Crl. Appeal No 1824 of 2003 --------------------------------------------------- Dated this the 15th September 2008 JUDGMENT Appellant is the sole accused in Sessions Case No 521 of 2000 on the file of the Additional Sessions (Adhoc Court- I) Kasaragode. In this appeal he challenges the judgment dated 21.10.2003 by which the appellant has been convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for three and a half years and to pay a fine of Rs 1 lakh and in default to undergo rigorous imprisonment for another three months. 2. The prosecution case is that on 15.10.1998 at 6.20 p.m the accused was found in possession of 85 packets of Karnataka made arrack in violation of the provisions of the Kerala Abkari Act at Kallinkol at Karaduka village. Thus, according to the prosecution, accused has committed the offence punishable under Section 55 (a) of the Abkari Act. According to the prosecution, accused was found in possession of 85 packets of Karnataka made arrack each of 100 ml capacity and the total quantity would come to 8.5 Crl.A 1824/03 2 litres. The offence was detected in pursuance of the information received by the Sub Inspector of Police, Adhur Police Station. The Sub Inspector of Police reached at the spot and seized the contraband article and arrested the accused and thereafter brought the accused as well as the contraband article to police station and registered a crime. On the basis of the same, investigation was undertaken and finally charge sheet was laid before the Judicial First Class Magistrate, Kasaragode and the said court after taking cognizance committed the case as per proceedings in C.P. No 326 of 1998 dated 14.12.1999 to the Sessions Court from where the same was made over to the Assistant Sessions Court, Kasargode and subsequently the same was withdrawn from that court and transferred to the court of Additional Sessions Judge (Adhoc I), Kasaragode. Summons was issued to the accused and the accused appeared and formal charge under section 55 (a) of the Kerala Abkari Act was framed and read over to him to which he pleaded not guilty which resulted in further trial of the case. On the side of the prosecution, P.Ws 1 to 4 were examined and documents were Crl.A 1824/03 3 marked as Exts. P1 to P5. No evidence was adduced on the side of the defence. After considering the case on merit the court below found that the accused is guilty of the offence punishable under Section 55 (a) of the Abkari Act and on hearing the accused, he was sentenced to undergo rigorous imprisonment for three and a half years and further sentenced to pay a fine of Rs 1 lakh. Default sentence was fixed as rigorous imprisonment for three months. It is the above conviction and sentence which are challenged in this appeal. 3. I have heard learned counsel for the appellant and the learned Public Prosecutor. 4. Reiterating the averments contained in the appeal memorandum, counsel for the appellant submitted that regarding the actual place of occurrence there is a glaring difference between the scene mahazar and seizure mahazar. It is also pointed out that there is no independent evidence and the court below failed to see that the evidence given by the official witnesses is not corroborated by any independent evidence. Pointing out certain defects with respect to the seizure of the contraband article and for the non explanation Crl.A 1824/03 4 for the proper custody of the same, counsel submitted that appellant is entitled to get benefit of doubt. In support of the above contention, learned counsel very much placed reliance on the decisions of this court in Narayani v. Excise Inspector (2003 (2) K.L.T 725) and Alex v. State (2003 (1) K.L.T Sh. Notes Page 9, case No 12). 5. On the other hand, learned Public Prosecutor submitted that there is no illegality in the judgment of the court below and no interference by this court is warranted. According to him, appellant has miserably failed to point out any prejudice caused to him connected with the investigation or trial of the case. I have carefully considered the rival contentions and also scrutinized the evidence and materials on record. The prosecution case is that while P.W.3 Sub Inspector of Police, Adhur Police Station on patrol duty from 15.10.1998 along with other police personnels received information that the accused is indulged in the sale of arrack at a place called Kallinkol. According to P.W.3, they reached the spot at about 6.20 p.m and the accused was found with a bag in hand on the northern side of the Panchayat well and on inspection of the Crl.A 1824/03 5 bag he found that the same contained another plastic bag in which 85 packets of 100 ml Karnataka arrack were kept. Immediately thereafter accused was arrested for which arrest memo was produced. Contraband article was also seized as per mahazar. It is also the case of P.W.3 that six packets were used for taking sample in two bottles of 375 ml capacity and the same was sealed and taken into custody. It is the further case of P.W.3 that the property produced on 20.10.1998 as per PR No 683/98 by him and till then the entire properties were in his custody. It is also the case of the prosecution that the seizure and arrest of the accused was effected in the presence of independent witnesses. P.W.1 shown is witness to the arrest and seizure. P.W.2 is also another attester to the scene mahazar, Ext P2. Ext P1 is the seizure mahazar. P.W.4 is the Sub Inspector of Police, Badiaduka police station who undertook the investigation subsequently and he filed final report after completing the investigation. Going by the evidence and materials on record it can be seen that there is no independent evidence to corroborate the evidence of P.W.3 the officer who detected the crime and also P.W.4 the Crl.A 1824/03 6 Investigating Officer. Of course, there is no legal bar in accepting the evidence of police officials and acting upon the same. But in the present case, the evidence of P.Ws 3 and 4 cannot be swallowed as such without corroboration from independent source because of the particular facts and circumstances involved in the case. P.W.3 deposed that he reached the police station with the article and the accused and registered the crime. He deposed that he is the person who produced the properties before court and the same was received in court on 20.10.1998 as PR No 683/98. He further deposed in chief examination that till the production of the article before court the same was in his custody. There is no explanation whatsoever under what document he kept the article in his custody. During cross-examination P.W.3 stated that at the time of preparation of seizure mahazar label or seal was affixed. He had categorically stated that no sign was seen in the seizure mahazar, property list and F.I.R. It is also stated by P.W.3 that except the sample article, the other articles were not sealed by the police on that day. It is also his case that no label was pasted on the remaining article. He Crl.A 1824/03 7 further deposed that no document was produced to show that article was kept in his custody. He was also not remembering the name of the police constable who produced the article before the court. According to P.W.3 he had entrusted the article with the police constable on 20th. If thondi register kept in the police station is examined the date on which the article was taken to the court can be ascertained. From the above it is crystal clear that even according to P.W.3 there is no document or any authority to show that the articles were kept in his custody. It is also clear from his evidence that except the sample article the remaining articles were not properly labelled. It is pertinent to note that none of the materials were produced before court and marked during trial. Thus it is clear that except the ipsi dixit of P.W.3 there is no evidence to hold the quantity and nature of contraband alleged to have been in possession of the accused. In Narayani's case, supra (2003 (2) KLT 725) this court has held that in the absence of any evidence to prove that residue and sample were kept in the proper custody till date of producing the same before court the chances of tampering with the sample taken and the residue Crl.A 1824/03 8 cannot be ruled out. Therefore the court has granted benefit of doubt in favour of the accused and the accused therein was acquitted. In Alex's case, supra (2003 (1) KLT Sh. Notes Page 9-Case No.12) this court held that a joint reading of Section 36 of the Abkari Act and paragraphs 17,26,34,49 and 77 of the Excise Manual would clearly establish that seizure should be reported to court forthwith and request be made for sending the sample for analysis. In the present case, though articles were alleged to have seized on 15.10.1998 the same were sent to court only on 20.10.1998 and received it in court on the same day. There is no proper explanation for the delay. It is to be noted that there is no proper document or record produced to show that it was kept in the proper custody. Therefore considering the above two facts together, I am of the view that the appellant-accused is entitled to get benefit of doubt. It is also relevant to note at this juncture that the two independent witnesses cited by the prosecution turned hostile and went to the extent of deposing before court that their signatures were obtained from their shop room and not from the spot from where the articles were alleged to have been Crl.A 1824/03 9 seized and the mahazar prepared. Therefore the prosecution has miserably failed to establish the case against the appellant-accused beyond reasonable doubt. In the result, the conviction and sentence entered against the appellant-accused is set aside allowing this appeal. The accused is acquitted of all the charges levelled against him. Appellant is entitled to get back the amount deposited by him as per the order of this court dated 03.11.2003 in Crl. M.A. No 11716 of 2003 while granting bail to him and it is ordered accordingly. Sd/- V.K. MOHANAN Judge 15/09/2008 en (true copy]