Balan Pillai @ Poth Balan S/o Kesavan Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937** ## **CRL.A.No. 1354 of 2004 (A)** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 1516/2002 of III ADDL.SESSIONS COURT, KOLLAM DATED 05-08-2004** **APPELLANT(S)/ACCUSED:** **----------------------------------------** **BALAN PILLAI @ POTH BALAN S/O.KESAVAN PILLAI, MANATHUVILATHAZATHIL VEEDU PUNUKKANNOOR CHERRI, KOTTANKARA VILLAGE.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** **RESPONDENT(S)/RESPONDENT: ----------------------------** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI N SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **P.D.RAJAN, J.** ## **--------------------------------------------Crl.Appeal. No. 1354 of 2004 ----------------------------------------------** Dated this the 20[th] day of January, 2016 ## **JUDGMENT** This appeal is directed against the conviction and sentence in SC 1516/2002 of the Additional Sessions Judge III, Kollam under Section 8(1) & (2)of the Abkari Act. The charge against the appellant is that on 28.03.2000 at 5.00 p.m, the Sub Inspector of Police, Kilikolloor was conducting patrol duty within his jurisdiction. When he reached at Thazhampana culvert, he got information that the appellant was conducting sale of illicit arrack in his property. He arrived at the place of occurrence and seized 20 packets of arrack each having the capacity of 100ml, for the purpose of sale. The accused ran away from there abandoning the arrack. The Police party seized the arrack after preparing a mahazar, reaching at the Police Station, they registered a crime. After completing investigation they laid charge before Judicial First Class Magistrate Court-I, Kollam, from there, the case was committed to the Sessions Court, Kollam. 2. During trial, prosecution examined three witnesses and marked Exts.P1 to P5 as documentary evidence, MO 1 to 4(a) series were admitted as material objects. The **Crl.Appeal. No. 1354 of 2004** **2** incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge, Kollam convicted the accused under Section 8 (1) & (2) of the Abkari Act and sentence to Rigorous Imprisonment for three years and fine of Rs.1,00,000/-, in default, Rigorous Imprisonment for ten months. Being aggrieved by that, he preferred this appeal. 3. I heard both sides. The learned counsel appearing for the appellant contended that, there is no independent corroboration to the seizure of arrack from the possession of the appellant. There is delay of one month for producing the seized article before court and prosecution has no explanation for it. The appellant was not arrested from the place of occurrence with the contraband articles and no identification parade was conducted after arresting the appellant. When there is no identification with regard to the alleged offence, the appellant is entitled to get the benefit of doubt. 4. The occurrence was deposed by PWs 1 to 3. PW2 is the Detecting Officer in this case. The evidence of PW2 shows that on 28.03.2000 at 5 O' clock, he conducted patrol **Crl.Appeal. No. 1354 of 2004** **3** duty within his jurisdiction and reached at the place of occurrence. At that time he got information that the appellant was selling arrack in his property and he stopped the vehicle and proceeded to the place of occurrence. When he reached there, one person standing there abandoned a plastic bag and ran away. He enquired about that persons and people found there told that the appellant abandoned 20 packets of arrack and ran away. He opened 4 packets each containing 100ml of arrack and he took 375 ml in two bottles as sample and the balance 16 packets of arrack were sealed at the place of occurrence. The sample was also sealed. He identified MO1 to MO 4(a) series. The contraband article was taken into custody after preparing Ext.P1 mahazar. Independent witness present there attested in Ext.P1 mahazar. Reaching at the Police Station, he registered a crime, Ext.P2 is the F.I.R and after identifying the accused, he produced Ext.P3 report. On 19.04.2000, appellant was arrested in Crime No. 141/2000 of Kilikolloor Police Station. In the circumstances, he was arrested in this case also. Ext.P4 is the arrest notice. The contraband articles were produced before the court on 28.04.2000, till then it was kept in his custody. The sample was sent over to the chemical examiners ## **Crl.Appeal. No. 1354 of 2004** ## **4** lab and Ext.P5 is the report. After completing the investigation he laid charge. On cross-examination, he admitted that he had not questioned any independent witness to identify the accused. Another person found at the place of occurrence was also an accused but his name was deleted from the case. Even though PW2 stated that when he enquired about the accused person he ran away from there, the name of the persons who informed about the accused was not mentioned in the mahazar. PW1 Police Constable attached to Kilikolloor Police supported the evidence of PW2. But the independent witness PW3 did not support the seizure. Even though PW1 and 2 deposed that the appellant was selling arrack, no corroborative evidence has been adduced by the prosecution in support of that contention. 5. When there is no arrest from the spot, the Investigating Officer has the responsibility to prove the case with convincing evidence. PW3 did not see the seizure of the article and not identify the accused. PW2 has no case that he is familiar to the appellant and identified the accused at the place of occurrence itself. It is the case of PW2 that the persons who were working in the field informed him that the appellant abandoned those articles, but to prove that fact no **Crl.Appeal. No. 1354 of 2004** **5** witnesses were examined. The absence of identity is fatal to the prosecution case that there is no evidence with regard to the identity. It shows that the witnesess PW1 and 2 did not know the accused previously. In this context, I rely the decision of the Apex Court in **Mahabir v. State of Delhi [2008 KHC 4541]** in which it was held as follows: “The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier idenntification proceedings.” In another decision, the Apex Court in **Suresh Chandra Bahri v. State of Bihar [AIR 1994 SC 2420]** held as follows: “It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused.” **Crl.Appeal. No. 1354 of 2004** **6** This Court in **Chandran v. State of Kerala [2013(3) KHC 312]** held that: “In the absence of evidence with regard to the identification of ran away accused and his identification for the first time in Court during the course of the trial, would not be sufficient to enter a conviction.” The evidence of identification is a relevant piece of evidence to prove the allegation against the accused person. The identification of an accused by a witness in the court is a substantive piece of evidence. 6. There is no explanation for the delay in producing the seized articles before court. The case was registered on 28.03.2000. The accused was arrested on 20.04.2000. The seized arrack was produced before court on 28.04.2000. The delay in producing the seized article was also not properly explained by the Investigating Officer. This create doubt in the seizure of the articles. When there is no proper explanation for the delay, appellant is entitled to get the benefit of doubt. In the circumstances, I am of the opinion that the prosecution failed to prove the case against the appellant and he is entitled to get the benefit of doubt. In the result, the conviction of sentence passed by the Additional Sessions Judge III under Section 8(1) & (2) of **7** ## **Crl.Appeal. No. 1354 of 2004** the Abkari Act is set aside. The appellant is acquitted and set at liberty. With the above observations, this appeal is allowed. **P.D.RAJAN, Judge** lsn