IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 CRL.A.No. 1025 of 2007 -------------------------------------- SC.71/2002 of ADDL. SESSIONS COURT, KOTTARAKKARA CP.297/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... APPELLANT: PURUSHOTHAMAN C.NO.1725 CENTRAL PRISON TRIVANDRUM. BY ADV. SRI.THOMAS.J.ANAKALLUNKAL. RESPONDENT: STATE OF KERALA REP. BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1025 of 2007 --------------------------- JUDGMENT Convict No.1725 Purushothaman of Central Prison, Thiruvananthapuram has preferred this appeal assailing his conviction in S.C.No.71/02 by the Additional Sessions Judge (Abkari Cases), Kottarakkara, for offence under Sections 55(a) and 55(i) of the Abkari Act and the sentence passed against him to undergo simple imprisonment for two years each and to pay a fine of Rupees one lakh each and in default to undergo simple imprisonment for a further term of three months each for offence under Sections 55(a) and (i) of the Abkari Act, with, however, benefit of concurrency and right of set off. 2. It is the case of the prosecution that at 6.35 p.m. on 22.7.1999 the appellant was found in possession and engaged in sale of arrack keeping it in a jerry can and with a drinking glass by standing on the pathway proceeding to Patteri Paddy CRA 1025/07 2 Fields on the western side of Patteri Junction at Ambalakkara. The offence was detected by PW5, the then Sub Inspector of Police, Kottarakkara and police party accompanying him. He seized the contraband articles; effected arrest of the accused and registered Crime No.514/99 of Kottarakkara Police Station, drawing up Exhibit P4 FIR in that behalf. PW4, who was the then Additional Sub Inspector of Police, conducted investigation in the case on the directions of the Circle Inspector of Police and on completion of the investigation, he submitted final report before the Judicial First Class Magistrate's Court-I, Kottarakkara. After complying with all legal formalities, the learned Magistrate committed the case to the Sessions Division, Kollam, where, the case was registered assigning the number as S.C.71/02 and the Sessions Judge made over the case to the Additional Sessions Judge (Abkari Cases), Kottarakkara for trial and disposal. 3. On appearance of the accused in the court below, he engaged his own Lawyer to conduct the CRA 1025/07 3 case on his behalf. The court below heard preliminary arguments; framed charge against the appellant under Sections 55(a) and (i) of the Abkari Act, read over and explained it to the appellant and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the prosecution, PWs 1 to 5 were examined, Exhibits P1 to P5 were got marked and MOs 1 to 3 were got identified. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, there was some quarrel at the toddy shop between him and the supplier in relation to curry and the police came and took him into custody and that is how this case is foisted against him. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid, found the appellant CRA 1025/07 4 guilty of offence punishable under Sections 55(a) and (i) of the Abkari act, convicted him thereunder and sentenced him as already stated. Hence this appeal by the aggrieved appellant from jail. 5. As the appellant had not engaged any Lawyer of his choice, Advocate Sri.Sanil Kumar was originally appointed on State Brief, but, as he did not turn up to argue the appeal Advocate Sri.Thomas J.Anakkallunkal is appointed on state Brief, removing Sri.Sanil Kumar. 6. Heard arguments of counsel on State Brief and the learned Public Prosecutor. 7. It is vehemently contended before me by the learned counsel for the appellant that the case is one foisted against the appellant by the police and the truth of the stand so taken by the appellant is also evidenced by the testimony of PW2. He further contended that there was three litres of arrack in MO1 five litre can, according to the prosecution, when seizure was effected and the case of the prosecution is that an amount of Rs.670/- recovered from the pocket of the appellant is cash obtained CRA 1025/07 5 by sale of arrack, but that if that be so, it is too much to believe that two litres of arrack sold by the appellant would have fetched him Rs.670/-; that further, the amount recovered is also not consistent, going by the evidence of PW3, as according to him, he was the Police Constable, who accompanied PW5 in the detection and seizure and he has deposed that what was recovered was hundred notes of five rupees denomination, one currency of twenty rupees denomination and five notes of ten rupees denomination, which would in all make only an amount of Rs.570/- and not Rs.670/-; that there is four days delay in producing the material objects before court and that strangely enough, MO1 can produced before court is a black jerry can with a black cap, whereas, what was recovered under Exhibit P1 mahazar was a black can with a white cap; that these circumstances would show that there was tampering with the material objects and that for all these reasons the appellant should have been acquitted, at least granting him benefit of doubt. He has taken me through the oral testimonies CRA 1025/07 6 of all the witnesses and the documents marked in evidence to substantiate his arguments. 8. PW5, the Sub Inspector of Police, Kottarakkara Police Station was the Detecting Officer and PW3 was a Police Constable, who accompanied him in the detection and seizure. PW5 has given evidence that on receipt of information by him, while conducting patrolling, that the appellant is conducting sale of arrack at Patteri- Thazhemukku, he went over there with the police party at about 6.35 p.m. and then saw the appellant with MO1 can and MO2 glass pouring some liquid into MO2 glass and seeing the police the appellant attempted to take to heels, but, he was intercepted and questioned; that he examined the contents in the can by smell and taste and understood that the contents in MO1 can is arrack and that the appellant was engaged in sale of arrack and consequently, effected his arrest preparing Exhibit P5 arrest memo in that behalf; that on examination of the person of the appellant, currency notes were recovered from his pocket, which was cash obtained CRA 1025/07 7 by sale of arrack; that there was three litres of arrack in MO1 can and he took samples (150 ml. each) in two bottles and sealed it as also the can, preparing mahazar in that behalf where under, the currency notes of value of Rs.670/- recovered from the appellant was also taken into bandavast; that the said mahazar is Exhibit P1 and going over to the police station along with the material objects and the mahazar prepared as also the appellant, he registered case against the appellant as Crime No. 514/99, drawing up Exhibit P4 FIR in that behalf. He has proved Exhibit P2 as the property list in 151A form, where under the material objects were enlisted and forwarded to court. Exhibit P2 property list shows that the material objects were produced in court only on 26.7.1999, whereas, the alleged seizure was on 22.7.1999. Thus, there is a delay of four days in producing the material objects before court. According to PW5, he was keeping the material objects in his safe custody till it was so produced and that further investigation in the case was being conducted by CRA 1025/07 8 PW4, the Additional Sub Inspector of Police. He has denied the suggestion in cross-examination that MO1 is not something which was recovered by him, but has admitted that he has not noted the numbers of the currency notes in Exhibit P1. 9. PW3 is the Police Constable, who was accompanying PW5 in the detection and seizure. According to PW3, there were others also at the scene of occurrence and they have taken to heels on seeing them, though he has corroborated PW5 and stated that the appellant was found pouring some liquid from MO1 can to MO2 glass. However, he has deposed that the currency notes recovered from the appellant were hundred notes of five rupees denomination, one note of twenty rupees denomination and five notes of ten rupees denomination. That makes only Rs.570/- and not Rs.670/-. Further, the gravity of the discrepancy is aggravated when it is seen that there was no note of hundred rupees denomination as per the testimony of PW3 nor was there currency notes of fifty rupees denomination, according to him. One CRA 1025/07 9 fails to understand why when two police officials in a team detected the offence and effected the seizure, there is such drastic difference between their versions. As per Exhibit P1 mahazar, the currency notes seized were five currency notes of Rupees hundred denomination, whereas, according to PW3, there were hundred numbers of currency notes of Rupees five denomination to make Rupees five hundred. As per the mahazar, there were two currency notes of Rupees fifty, but, according to PW3, there were no Rupees fifty denomination notes. This is over and above the discrepancy in the total amount recovered as being Rs.670/- and Rs.570/-. The discrepancy has come even in the chief examination of PW3. Such drastic difference can come only when the seizure alleged is not genuine or truthful. According to PW3, PWs 1 and 2 signed as attestors in the mahazar after it was read over to them. 10. According to PW1, he has not at all signed in the mahazar and he had not been questioned by the police. Nothing has been brought out in cross- CRA 1025/07 10 examination of PW1 by the prosecutor after declaring him hostile. PW2 has deposed that he has not witnessed the occurrence, though he has stated that he has signed in Exhibit P1 mahazar for fear of police; that at the time when he was made to sign in Exhibit P1, the appellant was within the jeep and he did not see either MO1 can or MO2 glass and that he was being called and made to sign in Exhibit P1 while the police were proceeding in a jeep. In cross-examination by the defence, it has been brought out that he was signing in Exhibit P1 mahazar in front of the Kakkad Toddy Shop; that he was going over there on seeing people assembled there and that the appellant was being taken in a jeep from the said toddy shop. 11. The testimony of PW3 in cross-examination further shows that they have not seen the accused engaged in sale of arrack, but that on seeing the police, the appellant was taking to heels, leaving MO1 can and MO2 glass. That is not the case of PW5, the Detecting Officer. CRA 1025/07 11 12. PW4, the Additional Sub Inspector of Police, who conducted investigation in the case, has given evidence, when he was examined in cross, that the cap of MO1 can is black, but that there is an inner cap, which is white. In Exhibit P1 mahazar the description of MO1 can is as one having a white cap and not as having a black cap and also an inner white cap. It is common knowledge that the can will certainly have a threaded cap, though, in some cans there will be an inner cap, which will, however, be not threaded, but, which can be pressed only into the can to have it closed. In the instant case, in Exhibit P1, it is specifically described that the threaded cap of MO1 can is white, whereas MO1 can, which was identified in court, was having a black outer cap, which obviously, is a threaded cap, though that was having an inner cap, which was white. This aspect, as rightly contended by the counsel for the appellant, casts doubt as to whether there was no tampering with the alleged recovered material objects, even assuming that the detection and CRA 1025/07 12 seizure were true. The appellant was being produced in court by PW4, the Additional Sub Inspector of Police with the remand application along with Exhibit P5 arrest memo on 23.7.1999. This shows that, as deposed by PWs 4 and 5, investigation in the case was taken over by PW4, immediately after the detection and seizure. If that be so, it cannot be believed that PW5, the Detecting Officer, continued to possess the material objects with him till it was produced before court on 26.7.1999 under Exhibit P2 property list. 13. The learned counsel for the appellant, in support of his contentions, relied on the decision of this Court in Damodaran v. Station House Officer [2008 (1) KLT SN 15 (Case No.18)], wherein, it was held that in the absence of evidence to prove that residuant samples were kept in proper custody, tampering cannot be ruled out. In the instant case, there is absolutely no material to hold that the material objects were kept in safe and proper custody, especially when, it is found that the cap of MO1 can was of black colour, when it was CRA 1025/07 13 identified in court, whereas, when the seizure was effected, it was having a white cap. 14. It is worthy to note that this is a case which rests only on the testimonies of the Detecting Officer and a Police Constable, who was accompanying him. The evidence of PW3, the Police Constable, who was accompanying PW5, the Detecting Officer, does not corroborate the testimony of PW5 in all the material details. When there are only two witnesses to an occurrence and both of them are police officials and the evidence given by one does not corroborate the testimony of the other on all material aspects, it is not safe to conclude that the case alleged is true and to enter into a conviction of the accused solely on the basis of their evidence. In the above view, I hold that the appellant should have been found not guilty by the court below, at least granting him the benefit of doubt. The conviction and sentence passed by the court below, therefore, deserves to be set aside and the appellant acquitted. CRA 1025/07 14 In the result, allowing this appeal I set aside the conviction and sentence passed by the court below against the appellant and acquit him of the offence under Sections 55(a) and 55(i) of the Abkari Act. Communicate the gist of the judgment to the appellant through the Superintendent of Central Prison, Thiruvananthapuram. The Superintendent of Central Prison shall release the appellant forthwith if his detention is not required to be had in connection with any other case. 29th February, 2008 (K.P.Balachandran, Judge) tkv CRA 1025/07 15 K.P.Balachandran, J. --------------------- Crl.A.No.1025 of 2007 --------------------- JUDGMENT 29th February, 2008