Joseph, S/o Mathew; Joy, S/o Antony; Xavier, S/o Antony v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939** **Crl.Rev.Pet.No. 2415 of 2005 ( ) ---------------------------------** **IN CRA 245/2003 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA** **IN SC 284/2001 of SUB COURT,KATTAPPANA** **PETITIONERS/APPELLANTS/ACCUSED:** **-------------------------------** **1. JOSEPH, S/O.MATHEW, CHELLIKULATHU VEEDU, BALAN PILLAI CITY,, RAMAKKALMEDU KARA, KARUNAPURAM VILLAGE.** **2. JOY, S/O.ANTONY, VALUKULATHIL VEEDU, BALAN PILLAI CITY, RAMAKKALMEDU KARA, KARUNAPURAM VILLAGE.** **3. XAVIER, S/O.ANTONY, VALUKULATHIL VEEDU, BALAN PILLAI CITY,, RAMAKKALMEDU KARA, KARUNAPURAM VILLAGE.** **BY ADV. SRI.N.A.MURALEEDHARAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - ## Crl.R.P. No. 2415 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of December, 2017 ## **O R D E R** The revision petitioners herein challenge the conviction and sentence under Sections 55(a), 55(b) and 55(g) of the Kerala Abkari Act (hereinafter referred to as “the Act”) in S.C.No. 284 of 2001 of the Court of Session, Thodupuzha. They faced prosecution before the court below on the allegation that at about 3.30 p.m. on 11.05.1999, they were found distilling arrack at a place near the canal at Ramakkalmedu. The offence was detected by the Sub Inspector of Police, Ramakkalmedu, during his usual patrol duty. His case is that while he was on duty in connection with another crime, he got secret reliable information regarding distillation of arrack by the accused, and accordingly, he went to the spot. When he reached there, the police party saw the three accused involved in the process of distilling arrack. He arrested the three accused **Crl.R.P. No. 2415 of 2005** **-2-** on the spot, and seized the articles including some quantity of arrack contained in a plastic jar, and also some utensils and equipments for distillation of arrack as per a mahazar. On the basis of the arrest and seizure, he registered the crime and occurrence report, and he made investigation also. Later, the Circle Inspector of the concerned circle verified the investigation, and submitted final report. 2. All the three accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined 4 witnesses in the trial court, and proved Ext.s P1 to P5 documents. The MO1 to MO9 properties were also identified during trial. 3. The three accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. In defence, they examined a witness as DW1 to disprove the prosecution case that they were arrested at the so called place of detection. The evidence given by DW1 is that the **Crl.R.P. No. 2415 of 2005** **-3-** accused were in fact taken into custody by the Sub Inspector at the town, and he had seen the Sub Inspector arresting them. 4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for three years each, and to pay a fine of 1 lakh each under the three₹ counts, by judgment dated 04.09.2003. 5. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Thodupuzha, with Crl.A.No. 245 of 2003. In appeal, the learned Additional Sessions Judge (Adhoc II), Thodupuzha, confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the accused are before this Court in revision, challenging the legality and propriety of the conviction and sentence on the ground that the whole prosecution case is suspicious, that there is no legal evidence to prove the guilt alleged against them, and that the inordinate delay in **Crl.R.P. No. 2415 of 2005** **-4-** producing the properties in court stands not properly and legally explained. 6. On hearing both sides, and on a perusal of the materials, I find that the conviction under Section 55(g) of the Act is quite unsustainable in this case, because there is no sort of evidence to prove such an offence. Then what remains is the allegation that the accused were found distilling arrack or in possession of arrack. The alleged offence as regards arrack in this case, will come under Section 8(2) of the Act. Instead of framing a proper and legal charge under Section 8(2) of the Act, the court below framed a charge under Sections 55(a) and 55(b) of the Act. The charge under Section 55(g) of the Act was framed by the trial court on the allegation that the accused were found possessing some quantity of wash, and also some utensils and articles for manufacturing arrack, and the charge under Sections 55(a) and 55(b) was framed on the allegation that the three accused were found involved in the process of ## **Crl.R.P. No. 2415 of 2005** **-5-** manufacturing arrack. Manufacturing arrack or even possession of arrack must come under Section 8(2) of the Act after 03.06.1997. Anyway, if found guilty, the conviction can be altered to Section 8(2) of the Act, and the irregularity can be thus cured. 7. Of the 4 witnesses examined in the trial court, PW4 is the Sub Inspector who detected the offence, and investigated the case, and PW1 is the Police Constable who assisted PW4. PW2 examined as an independent witness turned hostile. PW3 is the Circle Inspector who verified the investigation, and submitted final report in court. 8. The definite prosecution case is that the three accused were found distilling arrack, and a huge quantity of 950 litres of wash was seized on the spot by the Sub Inspector. There is absolutely no explanation why he did not collect sample from this much quantity of wash contained in 5 barrels. If the Sub Inspector had in fact seen **Crl.R.P. No. 2415 of 2005** **-6-** any quantity of wash there, he would have taken sample from the quantity of wash. There is no explanation why he did not collect sample from the spot. As regards the equipments and utensils also, there is no evidence by the Sub Inspector that these are the utensils or equipments used by the accused for the distillation of arrack. What is at the best proved is that he just seized some articles. He has no case that these articles were used by the accused for distillation of arrack. In the absence of such evidence, The conviction under Section 55(g) of the Act is liable to be set aside. 9. Now the question is whether there is evidence to prove the other offence. The detection was made by PW4 on 11.05.1999. But the properties were produced in court only on 08.06.1999. When asked about the delay, PW3 stated that the properties were in the safe custody of the Sub Inspector till 08.06.1999. But the Sub Inspector has no such case. His evidence is that he had **-7-** ## **Crl.R.P. No. 2415 of 2005** produced the properties on the next day in court. This is found false, because the property list shows that the properties were produced in court on 08.06.1999. It is not known in whose custody the properties were till 08.06.1999. In **Ravi** v. **State of Kerala** (2011 (3) KLT 353), a Division Bench of this Court held that in cases where there is inordinate delay in producing the properties in court in a prosecution under the Kerala Abkari Act, the prosecution will have to satisfactorily explain that the properties were in the safe custody of some official. In the absence of evidence proving safe custody of the properties till production in court, the court will have to find possibilities of tampering with the properties. This Court held that what the law insists is not that the property should be immediately produced or forthwith produced, but the properties should be produced without any delay. When the Circle Inspector stated that the properties were in the custody of the Sub Inspector, he stated otherwise that he had produced the properties on the ## **Crl.R.P. No. 2415 of 2005** **-8-** next day itself. In short, there is nothing to show that the properties were in the safe custody of any official for about a month. This is a vitiating factor. As regards the exact identification of the samples also, there is no proper evidence in this case. 10. DW1 has given evidence that he had seen the Sub Inspector arresting the accused Nos. 1 and 2 at the Ramakkalmedu town. PW2, examined as independent witness, turned hostile. His evidence shows that he had clearly witnessed the seizure of articles by the Sub Inspector, but he is definite that he had not seen any of the accused anywhere there at the time of preparation of the mahazar. He claims to be a relative of one of the constables in the police party. His evidence will have to be appreciated along with the evidence of DW1 that the accused Nos. 1 and 2 were taken in to custody by the Sub Inspector at the Ramakkalmedu Town. This creates a genuine doubt regarding the prosecution case. There is **-9-** ## **Crl.R.P. No. 2415 of 2005** reason to believe that the properties involved in this case were not seized by the Police at the instance of the accused, or in their presence. It is quite probable that on the basis of some information received by the Police otherwise, the three accused were arraigned, and final report was brought against them. Anyway, when the prosecution allegations under Section 55(g) of the Act is unbelievable and suspicious, the other part of the evidence given by the Sub Inspector cannot be accepted. Even that evidence is not satisfactory, and it is tainted with a genuine doubt regarding the possible tampering with the properties in view of the inordinate and unexplained delay in producing the properties in court. I find that there is no legal evidence in this case to prove the case beyond reasonable doubt. The accused are entitled for the benefit of the doubt that surrounds the whole prosecution case. In the result, this revision petition is allowed. The revision petitioners are found not guilty, and accordingly, they are acquitted ## **Crl.R.P. No. 2415 of 2005** **-10-** in revision. The conviction and sentence against the revision petitioners in S.C. No. 284 of 2001 of the trial court, confirmed in appeal by the Court of Session, Thodupuzha, in Crl.A.No. 245 of 2003, will stand set aside. Sd/- **P.UBAID** **JUDGE** ds 15.12.2017 //True copy// P.A. to Judge