**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE P.UBAID**
**THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938**
**CRL.A.No. 1502 of 2013 (A) ---------------------------**
**AGAINST THE JUDGMENT IN SC 218/2007 of ADDITIONAL SESSIONS JUDGE-TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 30-09-2013**
**APPELLANTS/ACCUSED NOS.1&2 :-**
**------------------------------**
**1. KESARY, S/O MUTHAYYAN, ROSE MANDIRAM, NEAR AMARAVILA ANAKUNNU MOSQUE, NADOORKOLLA DESOM, KOLLAYI VILLAGE.**
**2. MATHEW KUMAR @ JOY, S/O. YESUDAS NAYAKAM, ANAND BENGLOW, CHADAYAM VILAKKAM, PARASUVAKKAL DESOM & VILLAGE.**
**BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN**
## **RESPONDENT/COMPLAINANT/STATE :-**
**---------------------------------**
**STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. (CRIME NO.203/2006 OF PARASSALA POLICE STATION, THIRUVANANTHAPURAM)**
**R BY SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **P.UBAID, J.**
============================ **Crl.Appeal No.1502 of 2013** ============================ Dated this the 9[th] day of February, 2017
## **JUDGMENT**
The appellants herein challenge the conviction and sentence against them under Sections 55(a) and 55(g) of the Kerala Abkari Act.
2. The prosecution case is that when the Sub Inspector of Police, Parassala conducted a search at a shed attached to the house of the first accused at about 4.00 a.m. on 07.04.2006 on the basis of reliable secret information, two accused were found distilling arrack. The Sub Inspector seized a huge quantity of 1000 litres of wash kept in seven barrels, and also 35 litres of arrack contained in five cans, as per a search list. On the basis of the search, he registered a crime against the two accused. He produced the accused and the properties in Court without any delay. He himself took over the investigation, and also submitted final report in Court. After complying with
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the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge, Neyyattinkara for trial and disposal.
3. The two accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Sections 55(a) and 55(g) of the Kerala Abkari Act. The prosecution examined 5 witnesses including the detecting officer, and proved Exts.P1 to P13 documents. MO1 to MO15 properties were also identified during trial. When examined under Section 313 Cr.P.C., the two accused denied the incriminating circumstances, and contented that this is a false case foisted by the Sub Inspector. The accused did not adduce any evidence in defence. On an appreciation of the evidence the trial court found the two accused guilty under Sections 55(a) and 55 (g) of the Kerala Abkari Act. Instead of a conviction under Section 8(2) of the Kerala Abkari Act as regards the allegation of possession of arrack, conviction was wrongly made under Section 55(a) of the Kerala Abkari Act. On
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conviction, they were sentenced to undergo rigorous imprisonment for one year each, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) each under Sections 55(a) and 55(g) of the Kerala Abkari Act by judgment dated 30.09.2013. Aggrieved by the said judgment of conviction, the two accused have come up in appeal.
4. When this appeal came up for hearing, the learned counsel submitted that the whole process was done by the Sub Inspector who detected the offence, and that the one man show done by him had caused very serious prejudice to the accused.
5. PW5 is the Sub Inspector who detected the offence. He registered the crime against the accused, he produced the accused and the properties in Court, he investigated the crime, and also submitted final report. PW3 is the Head Constable who had accompanied the Sub Inspector at the time of search. PW1 and PW4 are the independent witnesses examined by the prosecution. Of them PW3 turned hostile, but PW4 supported the prosecution. On an appreciation of the evidence given by
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the material witnesses, I find that the prosecution has proved seizure of some properties from the possession of the accused. The Ext.P2 search list contains the details of the search made by the Sub Inspector at the shed belonging to the first accused. Ofcourse, the evidence of PW5 is that he had collected the required samples from the cans containing arrack, and the barrels containing wash. The huge quantity of wash was destroyed at the spot of detection itself after taking necessary sample. All the sample bottles were produced in Court for analysis. There is chemical report which shows that on analysis the sample bottles were found containing arrack and wash. But the question is whether there is any evidence to prove that these samples were collected by the police from the liquid or substance seized from the hands of the accused. Seizure of some properties from a shed attached to the house of the first accused that is not sufficient for a conviction under Sections 55(a) and 55(g) of the Kerala Abkari Act. It must be proved beyond reasonable doubt that the substance seized from the possession of the
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accused was arrack or wash, as the prosecution would allege. Now let me see whether there is any evidence on this point.
6. Everything in this case was done by PW5. He detected the offence, produced the accused and the properties in Court, and he himself took over the investigation, despite the fact that the very serious crime involves huge quantity of wash and arrack, and he submitted final report also in Court. The defence is mainly on **Kader v. State of Kerala [2001 Crl.Law Journal 4044]** . That everything was done by the detecting officer, will not by itself vitiate the prosecution. In this case, the learned counsel submitted that serious prejudice was caused to the accused by the one man show done by the Sub Inspector. It has come out in evidence that the cans and barrels containing arrack and wash continued in the custody of the Sub Inspector for years. He submitted a report in Court that the cans and barrels were damaged or destroyed. Without any enquiry, this report was accepted by the trial court. I find that the properties were produced
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by the police on the date of detection itself at the residence of the learned Magistrate. The accused was remanded to judicial custody, and properties were returned to the police, with direction to produce the properties in Court on the next working day. Accordingly, the properties were produced in Court on the next working day. The Sub Inspector of Police claims to have obtained custody as ordered by the learned Magistrate. There is nothing to show that the Sub Inspector was authorised by the Court to keep the properties in safe custody till trial. The barrels and the cans were destroyed and damaged by the time the case came up for trial. The whole materials contained therein were also lost by that time. When the case came up for trial, the barrels and the cans did not contain anything. Even labels were not seen on any of the items during trial. The Sub Inspector has no case in evidence that he was specifically authorised by the learned Magistrate to keep the properties in safe custody till trial. He has also no explanation how the properties happened to be destroyed. The prosecution is bound to explain what
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happened to the properties during trial, or how the cans and barrels were damaged or destroyed, or what exactly happened to the material therein. There is no such explanation in the evidence of PW5. He has not even stated in evidence that he was authorised by the Court to keep the properties in safe custody. I find that in the above circumstance where the whole properties were either tampered with or negligently dealt with during the process of investigation, the one man show conducted by the Sub Inspector definitely had caused serious prejudice to the accused, and that would vitiate the prosecution. It is quite unfortunate that the Sub Inspector spoiled a serious case by culpable negligence on his part. Anyway, in the absence of proper and satisfactory evidence, the accused will have to be acquitted.
In the result, this appeal is allowed. The appellants are not found guilty of the offences under Sections 55(a) and (g) of the Kerala Abkari Act, and accordingly, they are acquitted of the said offences in appeal under Section 386(b)(i) Cr.P.C. The conviction and
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sentence against them in S.C.No.218 of 2007 of the court below will stand set aside. Any amount or any document produced by the appellants in the court below as a condition for suspension of sentence will be released.
Sd/- **P.UBAID,JUDGE**
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P.A. TO JUDGE
