Ajayakumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934 CRL.A.No. 698 of 2012 ---------------------[AGAINST THE JUDGMENT DTD 31.5.2012 IN SC.478/2006 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-I), PALAKKAD DIVISION] APPELLANT(S)/ACCUSED: -------------------- AJAYAKUMAR, AGED 38 YEARS S/O.GOPINATHAN PILLAI, KORAVAPPARA, PIDAYOOR KOLLAM. BY ADVS.SRI.P.N.SUKUMARAN SRI.P.S.APPU RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 698 of 2012** **----------------------------------------** Dated this the 14[th] day of September, 2012 ## **J U D G M E N T** The above appeal is filed at the instance of the second accused in S.C.No.478 of 2006 on the file of the Court of Sessions, Palakkad challenging his conviction and sentence imposed vide judgment dated 31.5.2012 of the above court under Section 55(a) of the Abkari Act. 2. When the above appeal is admitted on 11.6.2012, this Court was not inclined to suspend the execution of the sentence, though an application was filed with such a prayer as Crl.M.A.No.4107 of 2012, because of the involvement of huge quantity of spirit and hence, at the instance of counsel for the appellant, the said petition was adjourned for hearing after getting records from the trial court. Accordingly, this Court called for the records and thereafter, the above petition and appeal were posted on several occasions. Today, I have heard the learned counsel for Crl.ANo.698 of 2012 :-2-: the appellant in detail on the question of suspending the execution of the sentence. On such hearing and considering the seriousness of the legal question raised by the counsel, I proceed to consider the appeal as such and accordingly, I heard Sri.P.N.Sukumaran, learned counsel for the appellant and Smt.S.Hyma, the learned Public Prosecutor. 3. The case of the prosecution is that on 4.10.2005 at about 9.10 a.m. in the public road at Nochur gramam in the Koduvayur village of Chittur Taluk, the accused two in numbers were found in possession and transporting spirit in 50 plastic cans of 35 liters capacity in a tempo traveller bearing Registration No.KL.7 AB 6268 and thereby, the accused have committed the offence punishable under Section 55(a) of the Kerala Abkari Act. On the basis of the above allegation, Crime No.237 of 2005 was registered for the offence punishable under Section 55(a) of the Abkari Act in the Pudunagaram Police Station. On completing Crl.ANo.698 of 2012 :-3-: the investigation, a report was laid in the Judicial First Class Magistrate Court, Chittur based upon which C.P.No.56 of 2006 was instituted and by order dated 28.7.2006 in the above proceedings, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.478 of 2006 was instituted and finally, the case was made over to the present trial court for disposal. When the summons were issued against the accused, only the present appellant/accused No.2 appeared before the court below and accused No.1 absconded and therefore, the case against him was split up and transferred to Long Pending Case Register as L.P.No.27/10. On the appearance of the appellant, after hearing the prosecution as well as the defence, a formal charge was framed against the appellant and when the said charge was read over and explained to him, he denied the same and pleaded not guilty, which resulted in further trial of the case during which Pws.1 to 8 were examined and Exts.P1 to P16 documents were Crl.ANo.698 of 2012 :-4-: produced and marked. Besides the above, MO1 bag, MO2 and MO2(a) blankets were also identified and marked as material objects. No evidence, either oral or documentary, was produced from the side of the defence. The trial court finally found that the prosecution has succeeded in establishing and proving the case against the appellant punishable under Section 55(a) of the Abkari Act and accordingly, he is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for four years and also directed him to pay a fine of `1 lakh and in default, he is directed to undergo simple imprisonment for another six months. It is the above finding and order of conviction and sentence challenged in this appeal. 4. In order to buttress the allegation, much reliance is placed by the prosecution upon the evidence of Pws.7 and 8 and also the documentary evidence. 5. Among the other witnesses examined, PW1 is the then Crl.ANo.698 of 2012 :-5-: Village Officer of Koduvayur-I Village through whom the prosecution has got prepared Ext.P1 site plan. Pws.2 to 5 are the independent witnesses cited and examined by the prosecution to prove the seizure as well as to prove the scene mahazar. Pws.2 and 3 are the attestors to Ext.P2 seizure mahazar and Pws.4 and 5 are the attestors to Ext.P3 scene mahazar. When these witnesses were examined, they turned against the prosecution, though they have admitted their signatures. 6. PW6 is the then Sub Inspector of Police, Pudunagaram Police Station, who undertook the investigation as directed by the Dy.S.P. When he was examined, he had deposed strictly in terms of the prosecution allegation. When he was examined, Ext.P4 chemical analysis report was marked through him. He had also deposed that the officer authorised under Section 53A had prepared an inventory, which is marked as Ext.P5 through him. Apart from those documents, Ext.P6 Crl.ANo.698 of 2012 :-6-: proceedings and Ext.P7 certificate issued by the committal court under Section 53A, Ext.P8 photograph and negative with respect to the material objects were marked through PW6. In addition to that, Ext.P9 report dated 6.2.2006 filed before the committal court requesting to take steps to dispose of the material objects as the cans were broken and the spirit was being rotted. Later another report i.e., Ext.P10 dated 25.3.2006 is also marked through PW6 with a similar prayer. Though PW6 is the investigating officer, no further facts have been stated by him with respect to the investigation. 7. Pws.7 and 8 are the officials, who are involved in the detection of the crime. PW7 was the then Circle Inspector of Police, Kuzhalmannam Police Station and PW8 was working as a Police Constable, who accompanied PW7 at the time of detection of the offence. When Pws.7 and 8 were examined, they have also deposed in terms of the prosecution allegation. According to Crl.ANo.698 of 2012 :-7-: PW7, on 4.10.2005, when he was working as Circle Inspector,Kuzhalmannam, and in the morning of the same day at about 8.45 a.m., while he was in Pudunagalam Police Station, he got a telephonic information that contraband spirit was being transported in a tempo traveller bearing Registration No.KL 7AB 6268 and according to him, on the basis of the above information, himself and party proceeded to check vehicles, in front of the Pudunagaram Police Station. According to him, at about 9 o' clock, a tempo traveller with the above registration number was seen coming from Vanidthavalam area and though he had given a hand signal to stop the vehicle, disobeying the direction and ignoring the signal, the vehicle was driven away and himself and party chased the vehicle in a police jeep and at about 9.10 a.m., when the vehicle reached near to Nochur temple, the police jeep overtook the tempo traveller and intercepted the said vehicle. According to PW7, the said tempo traveller was driven by accused Crl.ANo.698 of 2012 :-8-: No.1 and accused No.2/the appellant herein was a traveller in the said vehicle. It is the further case of PW1 that he proceeded to inspect the vehicle and thus, some articles were seen covered with blankets and when the same removed, 50 plastic cans of about 35 litres capacity each with liquid, were seen. According to PW7, he had opened the plastic cans one by one and checked the contents by tasting and smelling and confirmed the same as spirit. According to PW7, since possession and transportation of so much quantity of spirit without any licence or permit amounted to violation of the provisions of the Abkari Act, and as the accused were not having licence or permit, they were placed under arrest and all those cans which contain spirit were seized. He had also deposed that the samples were collected from each barrel in two bottles of 180 ml. capacity each and thereafter, the samples and the remnants were properly sealed and pasted the containers with labels containing brief description, name and signature of PW7 Crl.ANo.698 of 2012 :-9-: and the witnesses and the accused. PW7 has also deposed that when the dash board of the vehicle was opened, service book was seen and the same was also taken into custody along with the vehicle. PW7 has also stated about the preparation of certain documents, after his arrival in the Police station, for producing the accused, the samples and contraband articles etc. Thus, when PW7 was examined, Ext.P11 arrest memo, Ext.P12 service coupon book, Ext.P13 F.I.R,, Ext.P14 remand report, Ext.P15 property list and Ext.P16 forwarding note were marked through him. PW8, the Police Constable attached to PW7, when examined, deposed in terms of the deposition of PW7. These are the evidence and material referred to by the learned Judge in support of his finding to convict the appellant. 8. Mr.P.N.Sukumaran, learned counsel for the appellant after taking me through the court charge and the evidence of PW7 and PW6, it is submitted that the findings of the court below and Crl.ANo.698 of 2012 :-10-: the conviction recorded against the appellant are not legally and factually sustainable. According to the learned counsel, the prosecution has miserably failed to prove positively that it was the appellant, who transported the contraband article or he was found in possession of the spirit allegedly seized from the vehicle. It is also pointed out by the counsel that the prosecution has produced no satisfactory evidence to prove that the appellant has got possession over the contraband article allegedly recovered in the present case. It is the further submission of the learned counsel that even if the presence of the appellant in the vehicle is admitted for arguments sake, no offence under Section 55(a) of the Abkari Act is attracted against the appellant unless the prosecution positively proves his conscious possession over the contraband article. It is pointed out by the learned counsel that no documentary evidence is produced by the prosecution to prove that the vehicle in question was belonging to the appellant or he Crl.ANo.698 of 2012 :-11-: was having control over the vehicle as well as the contraband article. Thus, according to the counsel, absolutely there is no basis for the conviction imposed against the appellant. Therefore, the findings, conviction and sentence imposed against the appellant are liable to be set aside. 9. Resisting the contention advanced by the counsel for the appellant, the learned Public Prosecutor strenuously submitted that the evidence adduced by the prosecution to prove the presence of the appellant has not shaken by the defence and the evidence of the official witnesses as well as the documentary evidence positively prove the very physical presence of the appellant in the vehicle which contained the contraband article and therefore, it was for the appellant to give a convincing explanation, the circumstances under which he happens to be in the vehicle and to explain the situation under which he was found along with the contraband article. In order to substantiate the above contention, Crl.ANo.698 of 2012 :-12-: the learned Public Prosecutor took me through the deposition of PW7 and the documents produced from the side of the prosecution and submitted that PW7 and party proceeded to check the vehicle on the basis of the information received in which the particular registration number of the vehicle in question is conveyed to him and thus, the vehicle was found and directed to stop, but the same was taken away disobeying the hand signal given by PW7 which is subsequently intercepted and it is from that vehicle, the appellant was arrested. So the above evidence of PW7 and PW8 and other documents are sufficient to prove the involvement of the appellant in the commission of the above offence and therefore, the trial court is fully justified and correct in its judgment and convicting the appellant. Hence, according to the learned Public Prosecutor, no interference is warranted. 10. I have carefully considered the rival contentions advanced by the counsel for the appellant as well as the learned Crl.ANo.698 of 2012 **==> picture [28 x 9] intentionally omitted <==** Public Prosecutor. I have gone through the judgment of the trial court, the evidence and materials on record. 11. At the outset, it is to be noted that the prosecution allegations against the appellant and the other accused are on different footing. According to the prosecution, it was the first accused, who drove the vehicle in question and had taken the vehicle ignoring the hand signal given by PW7, who is now absconding. Whereas the case against the appellant is that he was found as a traveller sitting in front of the vehicle adjacent to the seat of the driver. 12. The crux of the prosecution allegation against the appellant is that he was found to be transported about 1600 litres of spirit kept in 50 plastic containers of 35 litres each in the tempo traveller bearing Regn.No.KL-07 AB 6268 in contravention of the provisions of the Kerala Abkari Act and Rules and thereby, committed the offences punishable under Section 55(a) of the Crl.ANo.698 of 2012 :-14-: Kerala Abkari Act. In the light of the rival contentions and evidence and materials on record, the question that emerges for consideration is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act in the given facts, circumstances and evidence of the case. 13. In order to decide the above question, it is beneficial to refer to the court charge dated 14.2.2012. In the court charge, the first sentence begins with the words “ _That you being front seat passenger and A1 Anilkumar as the driver, on 4.10.2005 at 9.10 a.m......................................._ ” and so, even according to the court charge, which is framed on the basis of the materials furnished by the prosecution, it is seen that the role of the appellant is only a passenger, who seated in front seat of the vehicle and going by the evidence of Pws.7 and 8, it can be seen that their evidence is also to that effect. PW7 in chief examination itself, has stated as Crl.ANo.698 of 2012 :-15-: ## follows:- “Tempo traveller ആ സമയ� ഓട�ച�ര�നത� ഒന�� പ�ത� അന�ല��മ�ര ആയ�ര�ന�. ��ട�ല ന�ല��ന രണ�� പ�ത� അജയ��മ�ര വ�ഹനത�ല ഡപ"വറ�ടട ഇടത�ഭ�ഗത�ള മ�ന സ*റ�ല ഇര���ന�ണ�യ�ര�ന�.” This is the only allegation against the appellant even in the evidence of PW7 , the officer who detected the crime. Same is the deposition of PW8, who accompanied PW7. No where in the deposition of PW7 or PW8 or the prosecution has got a case that the contraband article allegedly seized from the vehicle in question is transported by the appellant or he has got control or domain over the contraband article or on the vehicle. Since the evidence of Pws.7 and 8 and as such, the case of the prosecution and the court charge are to the effect that the appellant was found as a passenger in the front seat adjacent to the seat of the driver, the further question to be considered is whether the prosecution has succeeded in proving the possession of the contraband article Crl.ANo.698 of 2012 :-16-: with the appellant and whether the said possession is for transporting the contraband article. A learned Judge of this Court, after considering the words 'transport' and 'possession' that occurred in Section 55(a) of the Abkari Act has held in the decision in **Narayanan Nair** v. **State of Kerala** [2011(3) KLT 722] particularly in paragraph 28, as follows:- “28. It is also necessary to mention here that even the mere proof of “transport”, “import” or “possession” of liquor does not constitute any offence under S.55(a) of the Act. “Possession”, “transport” or “import” of liquor becomes an offence, only if a person is proved to have committed any of such acts, in contravention of the provision of the Act or Rules under which, such act is prohibited. A person cannot be convicted on the mere finding that he was transporting, importing or was in possession of liquor. Prosecution must prove that such acts are done in contravention of the Act, Rules or Order.” Learned counsel for the appellant after inviting my attention to several authorities including **Radhakrishnan** v. **State of Kerala** [2009(1) KHC 469], **Nellikunnel Jose** v. **State of Kerala** [2000 Crl.ANo.698 of 2012 :-17-: KHC 1887], **Avtar Singh** v. **State of Punjab** [2002 KHC 982], **Sorabkhan Gandhkhan Pathan and another** v. **State of Gujarat** [2004 KHC 2024] and submitted that in the light of the particular nature of the allegation raised by the prosecution in the present case, the prosecution has miserably failed to prove that the appellant was in conscious possession of the contraband article and therefore, no offence under Section 55(a) of the Abkari Act is attracted against the appellant. PW7 during his crossexamination has admitted in the following words:- “യ�പത��ര�ല�ടത മടങ�പ/���ന വ�ഹനങള�ല വഴ�യ�ല ന�ന�� യ�പത��ടര �യറ�ട��ണ�പ����ന �ത�വ�പല (Q). ജ*/2, ��ര , ഓപട�റ�ക മ�തല�യ വ�ഹനങള�ല അങ�ടന ട5യ�റ�ണ2 (A).” Admittedly, the vehicle in question involved in the case is a tempo traveller, which, in the present case is a passenger career. Though PW7 had answered in such a manner to the above question, still then he failed to depose before the court that the appellant was not Crl.ANo.698 of 2012 :-18-: such a mere passenger and there is no whisper to the effect that it was the appellant, who transported the same. It is in this juncture, the court charge and the evidence of Pws.7 and 8 and the entire prosecution case, with respect to the role of the first accused, become relevant, since as per the prosecution allegation, the appellant is only a passenger. PW7, during his further crossexamination, has categorically deposed before the court that he had not conducted any investigation to find out the destination about the vehicle in which the appellant allegedly travelled and the source of the contraband article. In the decision reported in **' s case Narayanan Nair** [2011(3) KLT 722], this Court has already held that to prove the offence under Section 55(a) of the Abkari Act, the prosecution has to prove that the accused brought the contraband article into the State of Kerala from some place which lies outside the State. In the present case, it is relevant to note that spirit is not prohibitted in State of Kerala. Therefore, it Crl.ANo.698 of 2012 :-19-: was incumbent upon the prosecution to plea and prove that the spirit in question is unauthorisedly and illegally transported either through the State of Kerala or transported from outside the State to State of Kerala. No investigation is conducted in this regard and there is no case for the prosecution and no evidence to the effect that the appellant is having direct control and possession over the contraband article, found transported from a particular source and place to a particular destination. 14. More over, it is relevant to note that the vehicle in question driven, according to the prosecution, is not by the appellant, but by the first accused and it was the first accused, who disobeyed the hand signal given by PW7 and had taken the vehicle further, but later intercepted by PW7. No evidence with respect to the vehicle is produced by the prosecution to prove that the appellant is the owner of the vehicle or he is having control or domain over the said vehicle. No proper and effective Crl.ANo.698 of 2012 **==> picture [28 x 9] intentionally omitted <==** investigation is undertaken by the prosecution agency to find out the exact owner of the vehicle. PW7 has also stated that he could not trace out any documents to prove the ownership of the appellant over the vehicle. Though PW7 has claimed that a Police Constable viz., PC 3463 was sent to conduct an inquiry in this connection, the said Police Constable also was not examined and no evidence is adduced in this regard. The facts, which are stated by PW7 about those aspects are only hearsay evidence which cannot be accepted as legal. Thus, absolutely there is no evidence to connect the appellant with the alleged crime by proving that he is the owner of the vehicle as well, as held by this Court in paragraph 28 of the decision reported in 2011(3) KLT 722. In the present case also, according to me, the prosecution has miserably failed to plea and prove the overt act of the appellant in the commission of the offence. Only, the mere presence of the appellant in a public carriage vehicle, especially in the absence of Crl.ANo.698 of 2012 :-21-: any positive allegation or attribution of overt act of the appellant in the commission of the offence, particularly when there is no proof to show that the appellant has domain or control or possession over the vehicle in question as well as on the contraband article, it cannot be said that the prosecution has succeeded in proving its allegation against the appellant beyond reasonable doubt. 15. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove its allegation against the appellant that he was found in possession of the contraband article while transporting the same beyond reasonable doubt and therefore, the appellant is entitled to get the benefit of doubt. Therefore, I am unable to confirm the conviction recorded by the trial court against the appellant. Accordingly, the conviction recorded by the trial court against the appellant under Section 55(a) of the Kerala Crl.ANo.698 of 2012 :-22-: Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 31.5.2012 in S.C.No.478 of 2006 of the court of Additional Sessions Judge (ADHOC-I), Palakkad and the appellant/accused is acquitted of all the charges levelled against him and his set at liberty. As the appellant is acquitted and set at liberty, by setting aside the judgment of the trial court, he is entitled to get released from the jail forthwith if he is not required in any other case. Therefore, the Registry is directed to forward the gist of this Judgment to the Superintendent of Central Prison, Kannur for appropriate action. **V.K.MOHANAN, Judge** MBS/ ## Crl.ANo.698 of 2012 :-23-: Crl.ANo.698 of 2012 :-24-: ## **V.K.MOHANAN, J.** -------------------------------------------- In the result, this appeal is allowed setting aside the judgment dated 28.10.2008 in Sessions Case No.107/07 of the Court of Sessions Judge, Kottayam Division and the appellant/accused is acquitted of all the charges levelled against him. As the conviction and sentence awarded against the appellant is set aside and he is Crl.ANo.698 of 2012 **==> picture [28 x 9] intentionally omitted <==** acquitted of all the charges levelled against him, he is entitled to get release from jail, forthwith, if he is not required in any other case. The Criminal appeal is allowed accordingly. Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.ANo.698 of 2012 :-26-: DATED: -2-2010 ## Crl.ANo.698 of 2012 :-27-: