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2025 DIGILAW 1079 (KER)

Baby Kurian, S/o. Kurian v. State of Kerala

2025-04-11

K.V.JAYAKUMAR

body2025
ORDER : K.V. JAYAKUMAR, J. This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Court, Thodupuzha in Crl.A.No.316/2011 dated 30.09.2013. 2. The revision petitioner herein is the 1 st accused in S.C.No.207/2009 of the Assistant Sessions Court, Kattappana registered for offence punishable under Sections 8 (1) and (2) of the Abkari Act . 3. The prosecution case is that, on 09.11.2018., 1 st accused as the driver and the 2 nd accused as the passenger in KL-37-3964 autorikshaw had transported 35 liters of arrack in a plastic Can through Moonkipallam-Chettukuzhy public road and thereby allegedly committed offences punishable under Sections 8 (1) and (2) of the Abkari Act . 4. Before the trial court, PWs.1 to 4 were examined and Exts.P1 to P8 were marked. MO1 and 2 were also identified and marked. The trial court, after a full fledged trial, convicted and sentenced the revision petitioner/1 st accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default, to undergo rigorous imprisonment for three months. However, the trial court acquitted the 2 nd accused. 5. The learned Additional Sessions Judge-III, Thodupuzha dismissed Crl.Appeal No.316/2011. Impugning the judgment of the appellate court, the accused preferred this revision. 6. I have heard Adv.Ranjit George, learned Public Prosecutor and the learned counsel appearing for the revision petitioner. 7. The learned Public Prosecutor submitted that the impugned judgment is legally sustainable and no interference, whatsoever, is warranted in this matter. He further submitted that the prosecution has succeeded in alleging and proving the charge against the revision petitioner. 8. Per contra, the learned counsel for the revision petitioner submitted that the impugned judgment is illegal, irregular and improper. Both the trial court and the appellate court had failed to note the illegalities and improprieties in this case. 9. Before further discussion, it may be useful to extract the relevant section: “8. Prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack . - (1) No person shall manufacture, import export [without permit transit] possess, store, distribute, bottle or sell arrack in any form. (2) If any person contravenes any provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.” 10. - (1) No person shall manufacture, import export [without permit transit] possess, store, distribute, bottle or sell arrack in any form. (2) If any person contravenes any provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.” 10. I have heard the rival submission of the counsel for the parties and perused the records. 11. The learned counsel for the revision petitioner has challenged the judgment mainly on four grounds. The first submission of the learned counsel for the revision petitioner is that, both the trial court and the appellate court had failed to consider the fact that the revision petitioner was only the driver of the autorikshaw and even, on seeing the police, the revision petitioner did not try to run away. 12. It is submitted that, this would show that even if the factual aspect of the prosecution story is taken as true for the sake of argument, the person who ran away from the autorikshaw was the possessor of the contraband and the revision petitioner had no knowledge regarding the contents of the plastic Can allegedly contained in the contraband articles. 13. The prosecution has failed to allege and prove the Can allegedly seized from the accused, were produced and marked in evidence. According to PW4, the inner lid of MO1 Can is in white colour. When it was opened in the Court, it was found as black lid. Thus, the very identity of MO1 Can itself is doubtful and it is submitted that the benefit of doubt shall be given to the accused. 14. The third submission of the learned counsel for the revision petitioner is that, there are so many inconsistencies, discrepancies and contradictions in the evidence of material witnesses PWs.3 and 4. Further, independent witnesses PWs.1 and 2 turned hostile to the prosecution. 15. The learned counsel for the revision petitioner further submitted that the prosecution has failed to allege and prove that the revision petitioner/1 st accused was in domain and control over the contraband articles seized from the autorikshaw. Only when the prosecution succeeds in proving that the accused has domain and control over the illicit arrack, then only it could be said that the prosecution has proved the charge against the accused beyond reasonable doubt. 16. Only when the prosecution succeeds in proving that the accused has domain and control over the illicit arrack, then only it could be said that the prosecution has proved the charge against the accused beyond reasonable doubt. 16. In the instant case, admittedly, the 1 st accused/revision petitioner was the driver of the autorikshaw. The 2 nd accused hired auto taxi of the 1 st accused and entered into the passenger’s seat of autorikshaw on the space in between the driver’s cabin and the passengers seat. If that be so, it could be gathered that the 2 nd accused (who was acquitted in this case) was in actual control and domain of the contraband articles. The admitted case of the prosecution is that, when the police officers detected the case, the 2 nd accused/passenger of the autorikshaw ran way from the spot. However, 1 st accused/revision petitioner remained there in his seat. 17. The learned counsel for the revision petitioner argued that, had the 1 st accused was aware of the contents of the Can, he would have definitely attempted to escape from the scene. The prosecution has no such case. The trial court and the appellate court convicted and sentenced the accused holding that the driver of auto taxi has a primary duty to ask about the contents of the plastic Can and to ascertain such details from the passenger, when the passenger boards into the vehicle. I am unable to accept such a reasoning. 18. The trial court and the appellate court convicted the 1 st accused/revision petitioner on the assumption that the driver of the autorikshaw might be aware of the contents of the Can. In other words, the trial court and the appellate court convicted the 1 st accused on the basis of assumptions, surmises and conjectures. It is trite law that, suspicion, however strong it may be, would not be a substitute for proof. It is settled law that the prosecution has to allege and prove the charge against the accused beyond reasonable doubt. It is also well settled that the penal statutes are to be interpreted strictly within the four corners of the statute. 19. The learned counsel for the revision petitioner further submitted that the arrest of the 1 st accused is not proved by the prosecution. It is also well settled that the penal statutes are to be interpreted strictly within the four corners of the statute. 19. The learned counsel for the revision petitioner further submitted that the arrest of the 1 st accused is not proved by the prosecution. According to the prosecution, the 1 st accused was arrested from the spot in the presence of the witnesses. Admittedly, those witnesses were not even examined. 20. On going through the available materials on record, I am of the considered opinion that the prosecution has failed to aver and prove the charge against the revision petitioner/1 st accused beyond reasonable doubt. The prosecution has failed to discharge its burden to show that the 1 st accused has dominion and control over the article allegedly seized from his autorikshaw, nor the prosecution failed to prove that the 1 st accused/driver of the autorikshaw has any knowledge as to the contents of the Can which was being transported in his autorikshaw. The trial court and the appellate court convicted the 1 st accused holding that, driver of the vehicle has a primary duty to ascertain what all things are being carried in his autorikshaw. 21. Upon hearing the submissions of the learned counsel for the revision petitioner, I am of the considered opinion that the trial court and the appellate court convicted the revision petitioner based on assumptions, conjectures and surmises, which is impermissible in law. Moreover, the arrest of the revision petitioner/1 st accused is also doubtful. Admittedly, the independent witnesses turned hostile to the prosecution. The subsequent conduct of the revision petitioner/1 st accused would also indicate that, he was not aware of the contents of the Can. If the 1 st accused was aware of the contents of the Can, or in other words, if he was an accomplice to the offence, he would have definitely tried to run away from the spot. Instead, even according to the prosecution, he sit idle in his seat. Under Section 8 of the erstwhile Indian Evidence Act, subsequent conduct of the accused is a relevant factor in determining the lis. If all the evidence, facts and circumstances are considered cumulatively, I am of the considered opinion that the prosecution has failed to aver and prove the charge against the 1 st accused beyond reasonable doubt. Under Section 8 of the erstwhile Indian Evidence Act, subsequent conduct of the accused is a relevant factor in determining the lis. If all the evidence, facts and circumstances are considered cumulatively, I am of the considered opinion that the prosecution has failed to aver and prove the charge against the 1 st accused beyond reasonable doubt. I have no hesitation in holding that, if two views are possible, one showing the innocence of the accused and the other showing the guilt of the accused, the Court should accept the former view. 22. In the light of the above discussion, I am of the considered opinion that the impugned order is liable to be set aside. Both the trial court and the appellate court overlooked serious illegalities which cuts the very root of the prosecution story. In the result, (i) Criminal revision petition is allowed. (ii) The impugned judgment is set aside. (iii) The revision petitioner/accused is acquitted and he is set at liberty. (iv) The bail bond, if any, executed by the revision petitioner stands cancelled. (v) Fine, if any, paid by him shall be refunded.