Antony v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH APRIL, 2009 / 16TH CHAITHRA 1931 **CRL.A.No. 406 of 2002** (SC.44/2000 of ADDL. SESSIONS COURT-II (ADHOC), THRISSUR) APPELLANT/ACCUSED: --------------------------------- ANTONY, AGED 65, S/O.ARACKAL VEETTIL KUNJU VAREED, KAROOR DESOM, MANAKULANGARA, KODAKARA. BY ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY. RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, IRINJALAKUDA THORUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No. 406 of 2002 --------------------------------------------Dated this the 6[th] day of April, 2009** ## **J U D G M E N T** This appeal is preferred by the sole accused in S.C.No.44 of 2000 on the file of the court of Additional Sessions Judge, Fast Track Court-II, Thrissur challenging his conviction and sentence under Section 58 of the Abkari Act. 2. The prosecution allegation is that the accused was found in possession of 3.525 litres of coloured illicit liquor contained in 11 bottles of the capacities, 750 ml. (one bottle), 375 ml. (five bottles) and 180 ml.(five bottles) at about 6.10 p.m. on 23.10.1998 in front of the house of one Muhammed Haneefa, going towards south along Kodakara-Aloor Public Road and thereby, he committed the offence punishable under Section 58 of the Abkari Act. A formal charge was framed against the accused and he denied the said charge. Subsequently, the prosecution adduced evidence consisting of testimonies of PWs.1 to 5 and the documentary evidence such as Exts.P1 to P6. Besides the above, MOs.1 to 4 materials were also identified and marked. The accused took a defence of total denial and according to him, he was taken Crl.A.No. 406 of 2002 :-2-: to the Excise Office on the allegation of having been drunk and thereby, falsely implicated in the crime. However, the trial court finally found that the accused is guilty of the offence charged and accordingly, he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 lakh and in default, he was directed to undergo rigorous imprisonment for a further period of one year. It is the above finding and order of conviction and sentence are challenged in this appeal. 3. I have heard Sri.T.N.Manoj, learned counsel appearing for the appellant as also Sri.C.M.Nazar, the learned Public Prosecutor appearing for the State. 4. To prove the case, the prosecution mainly depends upon the evidence of PW1, the Preventive Officer attached to the Excise Office, Irinjalakuda during the relevant time. PW1 is the detecting officer. As per his deposition, while he was on patrol duty, he found the accused coming with the plastic bag in his hand and on interception and questioning, found that it was liquor. According to PW1, he had seized the contraband article by preparing EXt.P3 seizure mahazar in the presence of independent witnesses PWs.2 and 3. Ext.P1 arrest memo and Ext.P2 arrest notice are also proved through PW1. Though Crl.A.No. 406 of 2002 :-3-: PWs.2 and 3 are cited and examined as independent witnesses to prove the seizure, they turned hostile. PW4 is another Preventive Officer attached to the same Excise Office who accompanied PW1 at the time of detection. Though PW4 had deposed in terms of PW1 to certain extent regarding the entrustment of the seized contraband article with PW5, the Excise Officer, his evidence is not sufficient to corroborate the evidence of PW1. According to PW1, the contraband articles, the materials, the samples and the accused were produced in the Excise Office on 23.10.1998 and handed over to PW5, the Excise Inspector on the same day. PW5, another official witness namely, the Excise Inspector, when examined, deposed that he did not remember the exact date on which he received the contraband article and the accused, entrusted with him. But, PW4 says that on 23.10.1998, PW5 was not in the office and the contraband article and the accused were entrusted with PW5 only on the next day, i.e. on 24.10.1998. Thus, regarding the entrustment of contraband article and also the accused, there is material contradiction between the evidence of official witnesses particularly, PW1, the detecting inspector and the other official witnesses. The material point, where the official witnesses are Crl.A.No. 406 of 2002 :-4-: contradicting each other, cannot be treated as a mere contradiction , but it is relevant and deserved to be considered in detail. In the absence of concrete evidence regarding the entrustment of the material objects including the samples, this Court is not in a position to come to a correct conclusion as to who is the custodian of those articles during the period between the time of seizure of the contraband article and production of the contraband before the court below. The Excise Inspector, PW5, being the Officer of the Excise Range, is expected to be the custodian of the contraband article if the same is entrusted with him. According to PW5, on 24.10.1998, MOs., the samples and the accused were not entrusted with him and he did not know the exact date. If that be so, the possibility of tampering with the samples and the contraband articles cannot be ruled out. It is to be noted that the samples, which were sent for chemical analysis from the court, were not under safe custody, in the light of the conflicting version given by PWs.1,4 and 5. Therefore, the prosecurtion case is not free from doubt. 5. In this juncture, it is relevant to note that PWs.2 and 3, who were cited by the prosecution as independent witnesses, Crl.A.No. 406 of 2002 :-5-: turned hostile. Even though the independent witnesses turned hostile, there is no bar in accepting and acting upon the deposition of the official witnesses. But, their evidence must be free of doubt, infirmities and contradictions. Regarding the material point as to who is the custodian of the contraband article, there is no convincing evidence especially, when the official witnesses have given a contradictory version. So, the absence of independent evidence, regarding the seizure will go against the prosecution. 6. This Court in the decision reported in **Sathi** v. **State of Kerala** [2007(1) KLT S.N.57 (Case No.82)] has held that if the testimony of the detecting officer is credible and free from blemishes, the same can be accepted in proof of the arrest, search and seizure notwithstanding the unfriendly attitude shown by the independent witnesses to the mahazar. In the said decision, this Court has also held that it must be proved that sample which was analysed was the very sample which was drawn from bulk quantity of alleged contraband substance. In the present case, as there is no convincing and safely reliable evidence regarding the custody of the sample alleged to have drawn at the time of the seizure, it cannot be said that the sample Crl.A.No. 406 of 2002 :-6-: analysed in the chemical lab is the one that that was seized at the time of the seizure. Therefore, the entire prosecution allegation is doubtful and the evidence available on record is not sufficient to clear the doubt and therefore, the appellant is entitled to get the benefit of doubt. Therefore, according to me, the finding arrived on by the court below is not correct and the judgment of the court below is liable to be set aside. In the result, this appeal is allowed setting aside the impugned judgment of the court below and the appellant/accused is acquitted of all the charges levelled against him. The bail bond, if any, executed by the appellant will stand cancelled and he is set at liberty. The appeal is allowed accordingly. **V.K.Mohanan, Judge** MBS/ ## Crl.A.No. 406 of 2002 :-7-: **V.K.MOHANAN, JJ.** -------------------------------------------Crl.A.NO. 406 OF 2002 -------------------------------------------J U D G M E N T DATED: 6-4-2009 ## Crl.A.No. 406 of 2002 :-8-: