## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939**
**CRL.A.No. 349 of 2008 ( ) --------------------------**
**AGAINST THE JUDGMENT IN SC 873/2001 OF THE COURT OF THE ADDL.SESSIONS JUDGE ( ABKARI CASES), KOTTARAKKARA DATED 14-02-2008**
## **APPELLANT/ACCUSED NO.2:**
## **--------------------**
**DIVAKARAN, S/O KUNJU PILLAI EDAVANEZHATHU KIZHAKKETHIL VEEDU, KOTTAKKAKOM, CHAVARA, KARUNAGAPALLY TALUK.**
## **BY ADV. SRI.M.T.SURESHKUMAR**
## **RESPONDENT/COMPLAINANT:**
## **--------------------------**
**STATE OF KERALA THROUGH**
**THE SUB INSPECTOR OF POLICE, KOTTARAKKARA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAZ**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **K.P.JYOTHINDRANATH, J.**
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## **Crl. Appeal No.349 OF 2008**
- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of June,2017
## **JUDGMENT**
This criminal appeal is preferred against the judgment of conviction and sentence dated 14.02.2008 made in S.C.No.873/2001 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara. The conviction is under Section 55(a), (i) and 57(a) of the Abkari Act.
2. The prosecution case in a nutshell is as follows :
On 8.12.1998 at about 12 noon, the Circle Inspector of Police, Kottarakkara conducted a search in Toddy Shop No.11 of Chengamanad. He found 55 litres of arrack kept therein, seized the same and crime was registered. It is also the case of the prosecution that when the search was conducted, the salesman was present. He was
later arrayed as accused No.1. The licensee of the said toddy shop is arrayed as Accused No.2. After investigation final report was filed. Prosecution altogether examined seven witnesses and Exts.P1 to P8
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marked. Ext.X1 was also marked. MOs 1 to 6 were also identified. After appreciating the evidence, the court below convicted the accused under Section 55(a) and (i) of the Abkari Act and sentenced to undergo rigorous imprisonment for five years under each count and to pay a fine of Rs.1,00,000/- with default rigorous imprisonment for one year also under each count. Appellant was also convicted and sentenced to undergo rigorous imprisonment for three years under Section 57(a) of the Abkari Act and also to pay a fine of Rs.5,000/- with default imprisonment for three months. The sentence was directed to run concurrently.
3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before the court that in this case, even though search was on 9.12.1998, the property reached the court only on 14.12.1998. There is an inordinate delay in sending the article to the court. It is the submission that as per the dictum laid down by this court in **Raju v. State of Kerala ( 2012 KHC 877)** , it is held that the property should be sent forthwith. In the above referred case, the
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delay was only three days and it was held that it is fatal to the prosecution. In this case, the property was forwarded to the court only after clear four days i.e. the detection was on 9.12.1998, whereas the property was sent only on 14.12.1998. Thus, on the said ground itself, the appellant is entitled for acquittal.
4. The second argument advanced by the learned counsel is that originally the appellant was not shown as accused. He was only shown as the licensee of the toddy shop. The salesman of the toddy shop No.11 was shown as the first accused. In this case, the first accused was acquitted by the court saying that the identity was not proved. It is the submission made before this court that the appellant herein was not proved as the licensee of the shop, wherein the search was conducted by the Police. Admittedly, the appellant was not present therein. It appears that the court summoned Ext.X1 and on the basis of the said document, came to a conclusion that he was the owner/licensee of the said premises, wherein search was conducted. It is the submission that the positive case of the appellant was that it was not the
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toddy shop No.TS 11.
5. To buttress the said contention, the learned counsel for the appellant submitted before me that licence of the toddy shop will be issued to a particular premises. Admittedly, the case of the prosecution is that the building was an unnumbered building. No licence will be issued to conduct the toddy shop in an unnumbered building. When the positive case of the prosecution is that it was an unnumbered building, then only because the appellant herein bid/obtained right by negotiation to conduct the shop at Kollam range, it cannot be said that this particular shop was actually conducted by the appellant herein. When cogent and reliable evidence was lacking, constructive possession cannot be found with the shop wherein search was conducted. Only because appellant herein was the successful bidder of
the shop No. TS 11 as per Ext.X1 i.e. in a criminal prosecution, there should be cogent and reliable evidence to link the appellant with the possession of the contraband.
6. I heard the learned Public Prosecutor. The learned Public
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Prosecutor submitted before me that in this case the circle inspector who conducted the crime went to the place after preparing the memorandum of search. It can be seen that after search, a search list was also prepared. Thereafter, articles were taken to the police station. He gave a categoric explanation that thereafter he kept the articles in his safe custody and as he was deputed for Sabarimala duty, he was not able to produce the same forthwith. Thus, when there is a reasonable and reliable explanation given, it cannot be said that the whole prosecution will fail only because the articles were not produced forthwith. It can be seen that as per the dictum laid down by this Court in **Raju's** case (supra), there also it was held that only when reasonable explanation is not coming forthwith, then only the dictum will be applicable.
7. The next point argued is regarding the link in between the detection and the appellant herein. In that aspect, it can be seen that as per the evidence of PW3, he got an information that sale of arrack was going on at Chengamanad in Shop No. TS 11 and as such at 11.50 a.m.
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he reached at Chengamanad junction in front of Toddy Shop No.11 and from therein he prepared a search memo and the said search memo was marked as Ext.P2 and thereafter he entered into the shop. Thereon the salesman ran away from therein. He found that there were six cans wherein about 55 litres of arrack stored. He lifted the sample and a search list was prepared. That was marked as Ext.P1. Thereafter the crime registered. Property was produced before the court. Thus, there was no ambiguity regarding identity of shop.
8. In this case, the main argument advanced before me is regarding the ownership of the toddy shop No.TS 11 and the building wherein search was conducted. It appears that the argument is that the Police not actually conducted search in the licensed premises owned by the appellant herein. From the evidence of Circle Inspector, it can be seen that he was very familiar with the area. He categorically deposed that after getting information, he proceeded to the toddy shop, that also after preparing search memo, search was conducted and as per the search list articles seized.
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## Crl.A.No.349 of 2008
9. I very carefully perused the search list also. Therein also, it was categorically written that a sign board showing name TS 11 was therein. The learned counsel also got a stand before me that only because he had bid the shop by auction/negotiation, he will not automatically become licensee. He will become licensee only after payment of tax and also complying with other requirements. Surely prosecution got a case that the building was not numbered. But it is to be remembered that vending of arrack in a toddy shop is also not permissible. PW6 who was the excise circle inspector, categorically gave evidence to the effect that on 9.1.1998, the licensee of the shop TS 11 was the appellant herein. If there was no licensee at the relevant point of time, the categoric evidence of the said officer will not be like that. When X1 is therein, it will prove that relevant point of time T.S.No.11 was conducted by the appellant. The stand of the appellant is that he had nothing to do with the shop wherein search was conducted. In a criminal prosecution, the burden cannot be shifted. Surely, in this case, it can be seen that the licence was not seized by the
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prosecution for the reasons only best known to them. It can be further seen that when no material produced before the court by the prosecution, the court suo moto summoned the attested copy of sale list of toddy shops and Excise Divisional Officer, Kollam proved the same. He was examined as PW6 and marked the document as Ext.X1. Now it can be seen that as per Ext.X1, for the relevant point of time, the appellant herein was the successful bidder/negotiator. But at the same time, if a licence was issued, there will be description regarding the place where the licence was issued to vend the article. As per the schedule attached to Form No.IV given under the Kerala Abkari Shops Disposal Rules, 2002, it can be seen that there will be description of the boundaries all that of north, south, east and west. In this case, the positive case of the prosecution is that the building in which the toddy shop was seen functioning in an unnumbered shop and there was no evidence before the court regarding the ownership and the possession of the building wherein search conducted. This lapse or latch on the investigation side is seems to be intentional to safeguard the actual
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culprits. Under such circumstances, it may not be proper to convict the appellant herein saying that appellant (Accused No.2) was the licensee and being the licensee of toddy shop No.11, liability has to be fastened with him. If the case of the prosecution was that the arrack was sold from the licensed premises, there should be positive evidence in this regard. If the case was that arrack was seen in a shop room for the purpose of sale, the ownership and possession of the said shop is a very relevant aspect. Who was the owner of the building wherein the search was conducted? Who was the licensee and from where the licence was issued to vend the toddy? The answer to these questions were not answered by the prosecution. When the link is lacking for the reasons of defective or intentional lapse on the part of the investigating officer, I feel that in this case, benefit of doubt can be given to the appellant / accused.
With the above observations, this appeal is allowed setting aside the conviction and sentence imposed against the appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at
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liberty. The amount, if any, deposited by the appellant towards the compliance of the condition imposed by this court at the time of suspending the sentence is directed to be refunded to the appellant/accused forthwith on his proper application.
Sd/- **K.P. JYOTHINDRANATH JUDGE**
//True copy// P.A. TO JUDGE
sv/shg
