K.A.JOSE alias JOSEPH alias MANGADAN JOSE S/O. AUGUSTY v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936 CRL.A.No. 386 of 2004 (C) -------------------------- AGAINST THE JUDGMENT IN SC 241/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KASARAGODE APPELLANT(S)/ACCUSED: ---------------------------------------- K.A.JOSE @ JOSEPH @ MANGADAN JOSE S/O. AUGUSTY, 53 YEARS, KALPPURAKKAL VEEDU KADUMENI, CHITTARIKKAL VILLAGE BY ADV. SRI.T.K.VIPINDAS RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SHO, CHITARIKKAL POLICE STATION. R1 BY PUBLIC PROSECUTOR MR. CK. JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = CRL.A. No. 386 of 2004** **= = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)II, Kasaragod, for the offence under Section 55 (a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months. The appellant challenges the conviction and sentence so passed by the court below, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRL.A. No.386 of 2004 2 3. The prosecution case is briefly stated as follows: On getting information over phone at 7.50 p.m. on 23-2-2000 that after selling arrack in packets at Kadumeni, the appellant was moving towards Nallompuzha in Chittarickal Village by an autorickshaw driven by PW1, PW4, the Sub Inspector of Police, Chittarickal Police Station, and his party reached Nallompuzha. Seeing the autorickshaw bearing Reg.No.KL-13A 7859 coming from the side of Kadumeni, the police party stopped the same there at 8 p.m. It was driven by PW1. Two persons were travelling by that autorickshaw. On enquiry, it was revealed that they were CW6 Ananthakrishnan and the appellant. The appellant was taken out of that autorickshaw. On examining him, 17 packets each containing 100 ml. of arrack manufactured in Karnataka were seen in the 'Madikuthu' of his dhoti. Currency notes worth Rs.540/- were also seen in the pocket of his shirt. Since it was realised that the appellant was CRL.A. No.386 of 2004 3 possessing the arrack for the purpose of sale, he was arrested by PW4 at 8.05 p.m. Ext.P4 is the Arrest Memo prepared by PW4 in the presence of witnesses. PW4 opened 4 packets out of the said 17 packets of arrack and collected the contents in two 375 ml. bottles as samples and sealed them. The samples and the rest of the packets containing arrack and currency notes worth Rs.540/- were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 reached the Chittarickal Police Station at 9.15 p.m. on that day with the appellant and the properties and registered Crime No.31 of 2000 of that Police Station incorporating the offence under Section 55(a) of the Abkari Act. Ext.P5 is the F.I.R. thus drawn by PW4. He has prepared Ext.P2 Scene Mahazar at 9.40 a.m. on 24-2-2000 in the presence of witnesses. He has produced the appellant along with the Remand Report before the court. He has also produced the records before CRL.A. No.386 of 2004 4 the court. He has questioned the witnesses and recorded their statements. PW5, the Sub Inspector of Police, Chittarickal Police Station, continued the investigation and completed the same. He has submitted the Final Report before the Judicial First Class Magistrate's Court-II, Hosdurg. 4. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. Later, it was transferred to the Additional Sessions Court(Adhoc)-II, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P8 and MOs.1 to 4 on their side. The appellant was examined under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. The CRL.A. No.386 of 2004 5 defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that the commission of offence by the appellant was detected by PW4 and his party at about 8 p.m. on 23-2-2000 at Nallompuzha in Chittarickal Village. PW1 was driving the autorickshaw and CW6 Ananthakrishnan was also travelling along with the appellant in the autorickshaw at that time. On searching the body of the appellant, 17 packets each containing 100 ml. of arrack were found in a plastic cover kept in the 'Madikuthu' of his dhoti. PW4 admitted that seeing the appellant he did not feel anything special. But, on searching his body, arrack CRL.A. No.386 of 2004 6 was detected. Was it possible for the appellant to keep safely such large quantity of arrack in 17 packets in his 'Madikuthu' without exhibiting any symptom of such keeping? The deposition of PW4 that he did not feel anything special seeing the appellant indicates that no abnormal projection of something was absent in his body where allegedly 17 packets of arrack were kept. If that be so, the case of the prosecution that the appellant kept that much number of packets containing arrack in his 'Madikuthu' turns to be a doubtful one. 6. It is the prosecution case that CW6 Ananthakrishnan was also travelling along with the appellant in the autorickshaw at the time of detecting the offence. The said Ananthakrishnan and the driver of that autorickshaw were made witnesses by the prosecution for proving the alleged offence committed by the appellant. It is the case of PW4 stated in Ext.P1 Seizure Mahazar that the appellant, after CRL.A. No.386 of 2004 7 selling packet arrack at Kadumeni, was going to Nallompuzha area, by an autorickshaw driven by PW1. So, according to the prosecution, he was going by that autorickshaw for selling arrack at some places. It is difficult to comprehend that a person who had sold arrack at Kadumeni and was going by the autorickshaw for selling arrack again, travelled along with CW6 Ananthakrishnan who had nothing to do with that business according to the prosecution. The prosecution has cited PW1 and CW6 as independent witnesses for proving the alleged occurrence. PW1 did not support the prosecution case. His case explained during cross examination is an entirely different one. According to him, his autorickshaw was hired by CW6 Ananthakrishnan from Kadumeni when he was possessing a plastic cover. He had hired the autorickshaw for going to Chittarickal. On the way, from Bombay Junction, the appellant also entered into his autorickshaw. When the CRL.A. No.386 of 2004 8 autorickshaw reached Nallompuzha, the police stopped the same there. Then, CW6 Ananthakrishnan alighted from the vehicle after throwing the plastic cover and ran away. The police party did not take him into custody. But, they have taken the things so thrown away by him. It is the case of the appellant that while he was waiting for a vehicle at Bombay Junction for going to Chittarickal at about 7 p.m. on 23-2-2000, an autorickshaw came there from Kadumeni area and it stopped there as requested by him. He entered into that autorickshaw. CW6 Ananthakrishnan was in the autorickshaw. Ananthakrishnan was possessing a white packet. When the autorickshaw reached Nallompuzha, the police stopped it there. Suddenly, Ananthakrishnan, after throwing away the packet in his hand, ran away. The police have taken that packet. Then, the police have taken the autorickshaw, its driver and himself to the police station. On questioning, the driver informed the police that the CRL.A. No.386 of 2004 9 person who ran away was Ananthakrishnan and he was possessing that packet while he was entering the autorickshaw from Kadumeni. Ananthakrishnan is a relative of the Police Constable Krishnan, who was also one among the police party who stopped the vehicle. Even though the true facts were thus explained to the police, the police, in order to save the said Ananthakrishnan, a case has been foisted against him. 7. The case of the prosecution and the case of PW1 are different. PW1 supports the case of the appellant. PW1 was cited and examined as an independent witness for proving the prosecution case. The only evidence supporting the prosecution case of occurrence is that of PW4. Whether the evidence of PW4 can be relied on for finding the appellant guilty of a serious offence under Section 55(a) of the Abkari Act? The prosecution has cited as many as six occurrence witnesses. They are CWs.1 to 6. CW5 was examined as CRL.A. No.386 of 2004 10 PW1 and CW1 was examined as PW4. PW4 is the Detecting Officer. PW1 is an independent witness. CW6 is another independent witness. CWs.2 to 4 are Police Constables. PW1, the independent witness examined, has not supported the prosecution version of occurrence. As already noted, his case was an entirely different one supporting the case pleaded by the defence. PW4 is the lone voice supporting the prosecution version of occurrence. In view of these facts and in the circumstances already pointed out, the prosecution should have examined the said CW6 Ananthakrishnan or some other occurrence witness for getting corroboration of the evidence given by PW4. Such a corroboration of the evidence of PW4 is required in the facts and circumstances of the case. But, the prosecution has not chosen to examine either CW6 or CWs.2 to 4 for securing such corroboration. Therefore, it is not at all safe to place reliance on the sole version of PW4 regarding the occurrence CRL.A. No.386 of 2004 11 and convict the appellant for the offence under Section 55 (a) of the Abkari Act. 8. PW4 has arrested the appellant. It is discernible from Ext.P1 Seizure Mahazar that he has prepared an Arrest Memo while arresting the appellant. But, Ext.P1 is silent about the service of Arrest Notice. Neither PW4 nor the Investigating Officer PW5 deposed before the court that an Arrest Notice has been served on a friend or relative or other person known to the appellant informing his arrest. In the light of the direction issued by the Honourable Supreme Court in **D.K.Basu v. State of W.B. (AIR 1997 SC 610)** , the factum of arrest of the appellant should have been informed a friend or a relative or other person known to the appellant. If there is evidence to show that such an information was given, that would definitely strengthen the case of the prosecution with regard to arrest of the appellant who was allegedly found with the CRL.A. No.386 of 2004 12 contraband. No document intimating the factum of arrest to such a person has been produced or marked. It is simply noted in Ext.P5 First Information by PW4 that PW1, driver of the autorickshaw, was arranged for informing the factum of arrest at the house of the appellant. This is far from satisfactory. Some police officials were accompanying PW4 while the appellant was arrested by him. What prevented PW4 from entrusting the duty to inform the factum of arrest of the appellant to one of such police officials? PW1, an autorickshaw driver, cannot be held to be a responsible person to be entrusted with the duty to inform the factum of arrest of the appellant. Moreover, admittedly, no Arrest Notice has been prepared by PW4 for intimating the factum of arrest. So, the direction issued by the Honourble Supreme Court in that regard stands infringed by PW4. This is also a point turning against the prosecution. CRL.A. No.386 of 2004 13 9. It is the case of the prosecution that the offence was detected at about 8 p.m.on 23-2-2000 and Ext.P1 Seizure Mahazar was prepared, sample of the contraband was drawn and the contraband and other items were seized then and there. The appellant was arrested and Arrest Memo was prepared also then. Definitely, unless there is some sufficient source of light, these things could not have been prepared by PW4. Was there any source of light? No source of such light is noted in Ext.P1. PW4 stated before the court that Ext.P1 was prepared on the bonnet of the jeep with the help of street light. At the same time, he admitted that such a source of light has not been noted by him. In Ext.P2 Scene Mahazar or in Ext.P1 Seizure Mahazar, the presence of electric post fitted with light is not noted. This also casts shadow of doubt regarding the preparation of Ext.P1 and seizure of the contraband and other articles as claimed by the prosecution. CRL.A. No.386 of 2004 14 10. For the aforesaid reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 11. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. To Judge CRL.A. No.386 of 2004 15