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2007 DIGILAW 490 (KER)

Sivadasan v. State of Kerala

2007-08-03

K.THANKAPPAN

body2007
JUDGMENT K. Thankappan, J. 1. The appellant, the accused in SC No. 351/1999 on the file of the Additional District and Sessions Judge Fast Track (Ad hoc I), Kozhikode, faced trial for an offence punishable under S.55(a) of the Abkari Act on the allegation that he was found in possession of one litre of arrack on 16/08/1997 at a place called Kothankal. To prove the case against the appellant, prosecution examined six witnesses and relied on Exts. P1 to P9. MO 1 black cannas was also produced. After closing the prosecution evidence, the appellant was questioned under S.313 of the Code. He denied the prosecution charge and had stated that he is innocent. The Trial Court relied on the evidence of PWs 3 to 5, the official witnesses, and Ext. P8 chemical report and found the appellant guilty under S.55(a) of the Abkari Act and convicted him thereunder and sentenced to undergo R.I for two years and a fine of Rs.One lakh with default sentence of payment of fine to undergo S.I for a further period of nine months. Benefits under S.428 of CrPC was also allowed. The judgment of the Trial Court is challenged in this appeal. 2. This Court heard the learned counsel appearing for the appellant in detail and the Public Prosecutor. The following contentions are taken before this Court for challenging the judgment of the Trial Court. Firstly, it is contended that finding of the Court that the appellant had committed an offence punishable under S.55(a) of the Abkari Act is not legally sustainable in the light of the judgments reported in Surendran v. Excise Inspector, 2004 KHC 72 : 2004 (1) KLT 404 and Sudephan @ Aniyan v. State of Kerala, 2005 KHC 2088 : 2006 (1) KLT SN 72 : 2005 (2) KLD (Cri) 631 as the prosecution failed to prove that the contraband was seized from the appellant in connection with any export, transport or transit of the contraband. Secondly, it is contended by the counsel that evidence of PWs 3 to 5 cannot be accepted for finding the appellant guilty of the offence as the evidence of these official witnesses has not been corroborated with any independent witnesses. Secondly, it is contended by the counsel that evidence of PWs 3 to 5 cannot be accepted for finding the appellant guilty of the offence as the evidence of these official witnesses has not been corroborated with any independent witnesses. Thirdly, it is contended that PWs 3 and 4, the two official witnesses, who detected the crime and investigated the offence did not comply with the provisions of the Abkari Act as they have not given evidence before the Court that the contraband and the sample were produced before the Court in time and without any unnecessary delay so as to rule out the chances of substitution of the same. Lastly, it is contended that the evidence of PWs 3 and 4 would not show that they have complied with the provisions regarding seizure of the contraband article, taking of the sample and sealing and labelling of the same as per the procedure prescribed under the provisions of Kerala Excise Manual as there was no evidence before the Court that the contraband and the sample were produced before the Court where seal and label were got identified at the place of the seizure. With regard to the first contention, the prosecution case itself is that the appellant was found coming with MO 1 cannas along the road when PW 3 and other excise officials were on patrol duty on the day of the incident and on seeing the excise party, the appellant wants to hide MO 1. However, the appellant was stopped and questioned by PW 3 and it was found that the appellant was found in possession of one litre of arrack in a five litre cannas and there was no evidence adduced by the prosecution to prove that the appellant possessed MO 1 in connection with any transport or transit of the same. If so, as per the principles laid down by this Court, possession simplicitor of any liquor will not attract S.55(a) of the Abkari Act as held by this Court in Surendran's case as well as in Sudephan's case (cited supra). If so, as per the principles laid down by this Court, possession simplicitor of any liquor will not attract S.55(a) of the Abkari Act as held by this Court in Surendran's case as well as in Sudephan's case (cited supra). In the above two judgments, this Court had categorically held that to attract an offence under S.55(a) of the Act, the prosecution should allege and establish that the contraband was found in possession of the accused in connection with any of the Act contemplated under S.55(a) of the Act in connection with transport, export, transit etc. There is no evidence adduced to that effect. If so, the finding of the Court that the appellant committed the offence under S.55(a) of the Act is not legally tenable. However, the prosecution case is that the appellant was found in possession of one litre of arrack on the day of the incident and if a person possesses arrack in any form, can be punished under S.8(1) read with S.8(2) of the Abkari Act. The prosecution case now tried to prove through the evidence of PWs 3 to 5 is that the appellant was found in possession of MO 1 which contained one litre of arrack out of which the sample was also taken and got analysed and as per Ext. P8 chemical report it was reported that the sample contained 38.48% of ethyl alcohol by volume. If so, the prosecution succeeded in proving that the sample analysed was arrack as defined under S.3 of the Act. The prosecution case before the Court was that the appellant was found in possession of MO 1 which contained one litre of arrack. The evidence adduced before the Court would show that while PW 3 along with his excise officials were on patrol duty, they have seen the appellant coming in front of them with MO 1 can and on stopping the appellant it was revealed that MO 1 contained arrack. Further, the prosecution allegation is that on preparation of Ext. P2 statement, MO 1 was seized from the appellant and sample was taken. This fact is tried to prove the prosecution through the evidence of PWs 3 and 4. The prosecution examined PWs 1 and 2 who were the independent witnesses, alleged to have been present at the time of preparation of Ext. P2 statement and Ext. P1 mahazar. P2 statement, MO 1 was seized from the appellant and sample was taken. This fact is tried to prove the prosecution through the evidence of PWs 3 and 4. The prosecution examined PWs 1 and 2 who were the independent witnesses, alleged to have been present at the time of preparation of Ext. P2 statement and Ext. P1 mahazar. These witnesses turned hostile to the prosecution and have stated that they were not present in the scene. Hence, the Court left with the evidence of Pws 3 and 4 alone. PW 3 had stated that he had seized MO 1 from the appellant and had taken the sample. This witness also had stated that he had registered an occurrence report as OR No. 88/1997 and this witness has also stated that the appellant was arrested and he was entrusted to the Range Office, Balissery. This witness has further stated that he had seen copy of the occurrence report and other details regarding detection of the crime to the Judicial Magistrate of First Class, Koyilandy as evidenced from Ext. P9. It is seen from the seal of the Court in Ext. P9 that occurrence report reached the Court only on 19/08/1997. The delay in sending the report to the Court is not explained. Apart from the above document, it is come out in evidence that the appellant and the sample along with the contraband were produced before the Excise Range Office, Balissery and at Balissery a crime was also registered as CRNo. 90/1999 and a further FIR was sent to the Court on 17/08/1997 which was received by the Court on 18/08/1997. These two documents were produced before the Court at different times and the delay created a little doubt regarding the action taken by PW 3 and also PW 4. It is come out in evidence that MO 1 and the sample alleged to have been seized from the appellant were produced before the Court on 18/08/1997. These two documents were produced before the Court at different times and the delay created a little doubt regarding the action taken by PW 3 and also PW 4. It is come out in evidence that MO 1 and the sample alleged to have been seized from the appellant were produced before the Court on 18/08/1997. There is no explanation coming either from PW 3 or PW 4 for the delay and apart from the delay caused, these two witnesses and PW 5 had not offered any evidence to show that the contraband and the sample were kept in safe custody till they were produced before the Court and the chance of substitution of the same was not ruled out by proving the evidence before the Court that the material objects were kept in safe custody. This shows that the action taken by PWs 3 and 4 is not in accordance with the provisions of the Abkari Act and also not in conformity with the principles laid down by this Court in the judgment reported in Narayani v. Excise Inspector, 2002 KHC 863 : 2002 (3) KLT 725 . In the above judgment, this Court held that in the absence of any evidence to prove that residue and the sample were kept in proper custody till the date of producing the same before the Court to rule out the chances of tampering the same. Apart from this infirmity, it is come out in evidence that either PW 3 or PW 4 had given evidence before the Court that the sample alleged to have been taken from the appellant was properly sealed or labelled and got the signature of the appellant or the witnesses present. In this context, PW 3 and PW 4 had even got doubt regarding the nature of the seal which they alleged to have been put on the sample and the contraband. All these facts and circumstances, create reasonable doubt on the evidence of Pws 3 and 4 to show that the contraband was seized from the appellant as alleged in the prosecution case. The benefit of such reasonable doubt has to be given to the appellant. If so, this Court is inclined to set aside the finding entered by the Trial Court that the prosecution had succeeded in proving that the appellant was found in possession of MO 1 cannas which contained one litre of arrack. The benefit of such reasonable doubt has to be given to the appellant. If so, this Court is inclined to set aside the finding entered by the Trial Court that the prosecution had succeeded in proving that the appellant was found in possession of MO 1 cannas which contained one litre of arrack. Apart from this, this Court to see that though the appellant had denied the prosecution case when he was examined under S.313, the Trial Court had not put the contents of Ext. P8 chemical report to him and that report shows that the sample analysed was arrack. The only question put to him is that ''Ext. P8 xxx ? He answered 2l. The accused has got a right to get clear the evidence regarding the circumstances proved against him by the prosecution when he was questioned under S.313. If such a right is infringed, the prosecution could not succeed to prove the case against such accused. In the light of the discussions made in this judgment, this Court is of the view that the appellant is entitled for acquittal of the charge. Hence, judgment of the Trial Court is set aside and the appellant is acquitted and the appeal is allowed accordingly. The bail bond of the appellant stands cancelled. It is also made clear that if any amount has been remitted by way of fine by the appellant, that amount shall be returned to him as per law.