## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937**
**CRL.A.No. 1750 of 2005 ( )**
**---------------------------**
**AGAINST THE JUDGMENT IN SC 120/2003 of ADDL.SESSIONS JUDGE FAST TRACK COURT NO.III (ADHOC), MANJERI DATED 09-09-2005**
**APPELLANT(S)/ACCUSED::**
**------------------------**
**GEORGE,**
**SON OF KARIMARTHIL PUTHENVEETTIL JOSEPH KURUMBALANODE VILLAGE, PATHAR DESOM, NILAMBUR TALUK MALAPPURAM DISTRICT.**
**BY ADV. SRI.K.M.SATHYANATHA MENON**
## **RESPONDENT(S)/COMPLAINANT/STATE::**
**-----------------------------------**
**1. EXCISE INSPECTOR,**
**NILAMBUR RANGE, NILAMBUR, MALAPPURAM DISTRICT.**
**2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SRI. N. SURESH.**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**acd**
## **P.D. RAJAN, J.**
------------------------------------------Crl.Appeal No.1750 of 2005 ---------------------------------------------Dated this the 22[nd] day of January, 2016
## **JUDGMENT**
This appeal is preferred against the conviction and sentence in S.C.No.120/2003 of Addition Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri u/s.55(a) (g) and 8(1) of the Abkari Act. The charge against the appellant is that on 26.7.2000 at 12.40 p.m. he was found in possession of 20 litres of arrack and 140 litres of wash in four other cans from the property of Chettimattel Joy, S/o. Joseph at Manjappara in Kurumbilangode Village. The Excise Inspector, Excise Range, Nilambur arrested the accused and seized the contraband articles, thereafter, registered a crime and occurrence report. After completing investigation, Range Inspector, Nilambur laid charge before Judicial First Class Magistrate Court, Nilambur,
Crl.A. No.1750/2005
2
from there the case was committed to Sessions Court, Manjeri for trial.
2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P9. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard u/s.232 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant u/s.55(g) and 8(2) of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of 1 lakh in default simple imprisonment for three₹ months each u/s.55(g) and 8(2) of the Abkari Act. No separate punishment was imposed u/s.55(a) of the Abkari Act. Being aggrieved by that, he preferred this appeal.
3. The learned counsel appearing for the appellant contended that there is no independent corroboration to the alleged seizure. The independent witness cited by the prosecution turned hostile. The Excise Party got an
Crl.A. No.1750/2005
3
information at a distance of 50 meters away from the place of occurrence. The property comprised of 40 acres. Therefore, the allegation that the nine Excise officials searched the entire property within ten minutes is utter false and there is no possibility for registering such a case against the accused.
4. The learned Public Prosecutor contended that there is no reason to interfere in the findings recorded by the Court below. All procedure formalities were properly complied with and therefore, there is no illegality in the sentence passed by the trial Court.
5. The occurrence was proved by PW1. The evidence of PW1 shows that on 26.7.2000 at 12.40 p.m., Excise Range Inspector, Nilambur has got an information that arrack was distilling in the property of one Joy, Manjappara desom, Kurumbilangode Village, Nilambur Taluk. After preparing a search memorandum, he arrived at the place of occurrence and searched the house, at that time, the accused was found in the
Crl.A. No.1750/2005
4
house and owner of the property was not found there. PW1 proceeded with the search and detected arrack in one can and wash in other four cans. The apparatus, implements and utensils for making arrack was also seized from the place of occurrence, which were marked as MOI to MOIII series. The contraband articles were seized after preparing a mahazar. He took 500 ml as sample in four bottles and sealed at the place of occurrence. Ext.P1 is the mahazar. Ext.P2 is the search list. Ext.P3 is the arrest memo. He affixed label in MOI series. PW1 and the accused signed in it. Reaching at Excise Range Office, he registered a crime. Ext.P4 is the crime and occurrence report. The seized articles were produced before Court from there it was forwarded to chemical examiner's lab. Ext.P6 is the property list. Ext.P5 is the copy of forwarding note. This witness was cross examined by the defence counsel. Procedures followed by PW1 was questioned. Even though PW1 stated that he prepared search
Crl.A. No.1750/2005
5
memorandum, no document was marked or produced in the trial Court to prove that before conducting search, he prepared a search memorandum and thereafter proceeded to the place of occurrence for search. Nothing was stated in Ext.P1 whether independent witness was present there or they saw the search and seizure.
6. PW2, Asst. Excise Inspector, Nilambur Excise Range, who accompanied PW1, supported the search and seizure. But, in Ext.P1 the presence of independent witness was not mentioned and they had not signed in Ext.P1. According to PW1, there are two accused, the owner and his worker. The appellant is the worker of the other accused. Even though PW2 stated that independent witness were present, that evidence is inconsistent with the oral testimony of PW1 and documentary evidence of Ext.P1.
7. PW3 and PW4 admitted their signature in Ext.P1, but they have stated that they were not present at the time
Crl.A. No.1750/2005
6
of search and seizure. PW1 obtained their signature, while they were sitting in Manu's shop. PW5 obtained Ext.P7 chemical examination certificate and laid charge before Court. In cross examination, he admitted that he obtained certificate from the Village Officer and as per the Village records, the property was not surveyed. According to the oral evidence of PW5, it is clear that the ownership and possession of the property was not proved by the prosecution. As per the Survey of the Village Officer, 40 acres of property was surrounded by forest land and Chettimattel family is in possession of the property, but that document was not marked in evidence. Moreover, the Village Officer was not examined as a witness to prove this point. When a search is conducted in a building or a house, it is the primary responsibility of the prosecution to show the possession or ownership of the house or the property.
8. As per Section 31 of the Abkari Act, any Abkari
Crl.A. No.1750/2005
7
officer not below the rank as specified by the Government or any police officer not below the rank of Sub Inspector or a Police Station Officer has reason to believe that an offence under the Abkari Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding Section will prevent the execution thereof, he may after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believed to be liable to confiscation under this Act. He may detain and search, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.
9. Apex Court in **K.L.Subbayya** v. **State of Kerala** [AIR 1979 SC 711] held that before proceeding to search a place, an excise officer conducting search has to make a record of ground based on which he had reasonable belief that an
Crl.A. No.1750/2005
8
offence under the act was being committed. Interpreting Section 54 of the Mysore Excise Act, which corresponds to section 31 of the Kerala Abkari Act, Hon'ble Supreme Court, held that the violation of the provision rendered the search completely without jurisdiction and, as a logical corollary, vitiated the conviction. Here, the detecting officer has not prepared any search memorandum and he has not followed the procedure thereunder. Even though he seized certain articles, that itself cannot be formed for basis of a conviction under the Abkari Act. Moreover, the possession of the property from where the liquor was seized and the possession of the house from where arrack was manufactured were not proved in this case. In such circumstances, the appellant is entitled to get the benefit of doubt.
10. The appellant was arrested from the property itself is not sufficient to convict him. The prosecution has a duty to prove the case beyond reasonable doubt. In the light of the
Crl.A. No.1750/2005 9
legal infirmity in connection with the search, seizure, possession and ownership of the property, the appellant is entitled to get the benefit of doubt.
In the result, the conviction and sentence passed by the learned Additional Sessions Judge, Manjeri u/s.55(a) (g) and 8
(1) (2) of the Abkari Act are set aside. The appellant is set at liberty and this appeal is allowed.
**P.D. RAJAN, JUDGE.**
acd
Crl.A. No.1750/2005 10
