A. Narayanan v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935** **CRL.A.No. 2120 of 2003 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 412/1999 of ADDL. SESSIONS COURT (ADHOC I), THALASSERY DATED 29-11-2003.** **APPELLANT/ IST ACCUSED :** **---------------------** **A.NARAYANAN, S/O KUNHIRAMAN, AMBILOTH HOUSE, ELLARANCHI POST, SREEKANDAPURAM, KANNUR DISTRICT.** **BY ADVS.SRI.P.T.ANTONY SRI.AYPE JOSEPH.** **RESPONDENT(S): ----------** **STATE, REPRESENTED BY C.I OF POLICE, TELLICHERRY, (CRIME NO.460/1997), TRHOUGH PUBLIC PROSECUTOR.** **BY PUBLIC PROSECUTOR SMT.V.H.JASMINE.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl. Appeal No.2120 of 2003 -----------------------------------------------Dated this the 21[st] day of March, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Appellant is aggrieved by the finding of guilt and imposition of sentence on him by the trial court under Section 55(a) of Abkari Act. Prosecution alleged that on 10-08-1997, at about 1.45 p.m, the detecting officer (Circle Inspector of Police) and his party searched the New Cosmopolitan Club, Thalassery and found out large quantity of Indian Made Foreign Liquor (I.M.F.L). The appellant is the first accused in the case. There were altogether three accused persons. Accused 2 and 3 were also tried along with the appellant, but they were acquitted. Appellant was admittedly the Club boy. Accused 2 and 3 were persons in management of the club. In order to establish the prosecution case, five witnesses were examined and eight documents were marked. Ext.D1 is the document marked on the side of the **Crl. Appeal No.2120 of 2003 2** defence. MO's 1 to 15 series were marked. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Learned counsel for the appellant would contend that grave procedural lapses in the investigation and non production of material objects promptly before the court will vitiate the trial. According to him, the court below did not consider the significance of non examination of the investigating officer and furnishing no explanation as to who kept the contraband article for more than 25 days before producing them in court. Let us go through the oral evidence. PW1 was the Circle Inspector of Police, who detected the offence. He testified that on 10-08-1997, he got a reliable information that large quantity of liquor was stored in New Cosmopolitan Club, Thalassery. He prepared a search memo and sent it to the court. At 1.45 p.m, he reached in the club with his party. First accused/appellant was **Crl. Appeal No.2120 of 2003 3** the Club boy. In a thorough search, PW1 found out a wooden room kept under lock and key. He asked the appellant to open it. He refused to open the room without the consent of the President or Secretary of the Club (A2 or A3). When the appellant refused to open the door, PW1 broke open the door and found out large quantity of I.M.F.L of various brands like whiskey, beer etc. kept in the closed room. PW1 asserted that the appellant was in control of the premises at the time. After arresting the appellant and preparing material documents from the place of detection and also after taking samples from respective bottles found at the premise, PW1 went to the Police Station with the contraband and the accused and registered the crime. 4. PW1 meticulously deposed about the detection of the offence and recovery of contraband. Presence of the first accused at the place of occurrence and his role as 'club boy' in **Crl. Appeal No.2120 of 2003 4** secreting large quantity of liquor is also testified by PW1. In spite of cross examination, his evidence could not be discredited. In the cross examination of PW1, an attempt was made to show that this club was functioning on the ground floor of a large building and others were also occupying other portions of the building. Therefore, a suggestion was made that the liquor might have been stored by other occupants of the building. PW1 stoutly denied this suggestion and asserted that the liquor was kept in the club for the use of the members. On going through the entire evidence of PW1, I do not find any reason to think that the contraband would have been kept in the club without the knowledge of the persons in control of the club. 5. PW2 was the Sub Inspector of Police at the material time. He was also present in the party led by PW1. In all material particulars, PW2 supported the version of PW1. PW2 also stated that the appellant resisted for opening the room kept **Crl. Appeal No.2120 of 2003 5** under lock and key and PW1 opened it. It was found to contain large quantity of liquor. 6. PW's 3 and 5 are the independent witnesses cited to prove the recovery of contraband from the club and the presence of the appellant at the time of detection of the offence. These two witnesses supported the prosecution case to the hilt. It is come out in evidence that these witnesses were sitting in the stadium watching some match and police asked them to witness the incident. Therefore, they went to the place of detection and witnessed the recovery of contraband article from the club. In spite of cross examination, these two witnesses also supported the prosecution case very much. 7. PW4 was cited to prove that 2[nd] and 3[rd] accused were also involved in the management of the club. However since their acquittal has become final, testimony of PW4 has no significance. ## **Crl. Appeal No.2120 of 2003 6** 8. Learned counsel for the appellant submitted that there is no evidence before the trial court to find that the samples taken by PW1 were produced before the court in a tamper proof condition. Apart from that, questions were put to PW's 1 and 2 suggesting that large number of Abkari cases might have been registered during that period and possibility of mixing up samples in this case with those in other cases could not be ruled out. PW's 1 and 2 could not effectively deny this suggestion. The investigating officer in this case would have been the best person to speak about those matters. It is seen from the judgment that the investigating officer could not be examined as he was not available for giving evidence. 9. Documents in this case show that the contraband articles were produced before the court only on 05-09-1997. Delay of 25 days is not explained by any of the witnesses examined on the prosecution side nor is it explained in any of **Crl. Appeal No.2120 of 2003 7** the documents produced by the prosecution. Learned counsel for the appellant relying on the dictum in _**Ravi v. State of Kerala and Another (2011 (3) K.L.T 353)**_ contended that non production of sample and rest of the contraband forthwith is fatal to the prosecution. Further, there is no link evidence to show that the samples recovered from the accused after change of hands reached the chemical laboratory in a tamper proof condition. Absence of evidence regarding proper keeping of the contraband articles for 25 days is a serious infirmity in the prosecution case. Therefore, I am of the view that though the prosecution has succeeded in proving the recovery of large quantity of liquor from a club, where the appellant was the club boy, he cannot be convicted under Section 55(a) of Abkari Act, going by the ratio in _**Ravi's**_ case (supra). However, the appellant was not able to satisfactorily account for his presence in the club. Further, he was the club boy at the material time is an **Crl. Appeal No.2120 of 2003 8** undisputed fact. Therefore, I am of the view that the appellant is guilty of violating Section 13 of the Act as he has possessed excessive quantity of I.M.F.L than the permitted limit. The incident was on 10-08-1997. The relevant notification permitted a person to possess only 1.5 litres of I.M.F.L. The quantity involved in this case is much higher than the quantity that was permitted to be possessed. Therefore, I am of the opinion that the appellant is guilty of violating Section 13 of the Act and is liable to be punished under Section 63 of the Act. Conviction of the appellant under Section 55(a) of Abkari Act is found to be unsustainable. Hence, the appeal is disposed as under : In the result, the appeal is partly allowed. Conviction of the appellant under Section 55(a) of Abkari Act is hereby set aside. Appellant is found to be guilty of an offence prescribed under Section 13 r/w Section 63 of Abkari Act. He shall pay a fine of Rs.5,000/- (Rupees Five Thousand Only), failing which **Crl. Appeal No.2120 of 2003 9** he shall undergo simple imprisonment for a period of six months. All pending interlocutory applications will stand dismissed. **Sd/-** //True Copy// P.A to Judge **A.HARIPRASAD, JUDGE.** amk