Raju s/o Vandichathan v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 CRL.A.No. 2115 of 2010(D) -----------------------------------(AGAINST THE ORDER IN SC.125/2008 of ADDL. SESSIONS COURT (ADHOC), KALPETTA) .................... APPELLANT(S): -------------------- RAJU,S/O.VANDICHATHAN,AGED 30 YEARS, KOLLICOLONY VEEDU,THIRUNELLY AMSOM, MANANTHAVADY. BY ADV. ADV.DHANYA P ASOKAN[STATE BRIEF] RESPONDENT(S): ----------------------- STATE, REPRESENTED BY EXCISE RANGE INSPECTOR, MANANTHAVADY, WAYANAD. BY PUBLIC PROSECUTOR SRI.JAIBY PAUL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON 15/07/2011 DELIVERED THE FOLLOWING: ## **V.K.MOHANAN,J.** **---------------------------------------------------------Crl.A.No. 2115 of 2010 --------------------------------------------------------Dated this the 15[th] day of July,2011** ## **JUDGMENT** The sole accused in S.C.No.125 of 2008 of the court of Additional Sessions Judge (ADHOC) – I, Kalpetta is the appellant as he is aggrieved by the order of conviction and sentence imposed against him under Section 55(g) of the Abkari Act. 2. The prosecution case is that at about 17.30 hours on 19.11.2006, the appellant was found in possession and handling of 30 litres of wash and distilling equipments on the bank of Papanashini river at Thirunelly and thereby committed the offence punishable under Section 55(g) of the Abkari Act. On the basis of the above allegation, Crime No.50 of 2006 was registered in the Mananthavady Excise Range and thereafter, investigation was undertaken and finally, a report was filed before the Judicial First Class Magistrate Court-II, Mananthavady based upon which C.P.No.9 of 2008 was instituted and the learned Magistrate by order dated 8.4.2008 committed the above case to the Sessions Court wherein S.C.No.125 of 2008 was instituted and made over to the trial court for disposal. Thus, on appearance of the accused, a formal charge was framed for the offence under Section 55(g) of the ## **CRL.A.NO.2115 of 2010** ## **:-2-:** Abkari Act which is read over and explained to the accused and he denied the charge and pleaded not guilty. Consequent to such denial, the trial was further proceeded during which Pws.1 to 6 were examined and Exts.P1 to P7 were marked from the side of the prosecution. Besides the above, three material objects were identified and Mos.1 to 3 were marked. No evidence either documentary or oral was adduced from the side of the defence. On concluding the trial, on the basis of the available materials and evidence, the trial court has found that the accused has committed the offence and accordingly, he is convicted under Section 55(g) of the Abkari Act and on such conviction, he is sentenced to undergo simple imprisonment for three years and to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for a further period of six months. Set off was allowed. It is the above conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the judgment impugned, he preferred this appeal from jail and on receiving the same as ordered by this Court, Sri.Dhanya.P.Asokan was appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Sri.Dhanya.P.Asokan, learned counsel appearing for the appellant as well as the learned Public Prosecutor. ## **CRL.A.NO.2115 of 2010** ## **:-3-:** 4. Learned counsel for the appellant vehemently submitted that the findings arrived on by the trial court are without proper appreciation of the evidence and materials on record and against the evidence. It is the specific contention of the learned counsel that regarding the time of occurrence, the evidence of prosecution cannot be believed because the prosecution witnesses themselves give divergent fact regarding the occurrence as well as the arrest of the accused. Learned counsel submitted that though Pws.1 and 2 say that the accused was arrested afternoon, Ext.P2 mahazar shows, it was at 6.20 p.m. As per Ext.P1 arrest memo as well as Ext.P3 occurrence report, the time is shown as 6 p.m. According to the learned counsel, against the above evidence of Pws.1 and 2- the official witnesses, the independent witness viz., PW3 says that the proceedings were over by 1 p.m. and according to PW3, the accused was caught hold by 5 p.m. and handed over to the Excise Party at about 8.30 p.m. So, regarding the arrest and occurrence, according to the learned counsel, the evidence is not conclusive and acceptable and reliable. The other point raised by the learned counsel is that the remnants were destroyed by the official witnesses in violation of Section 53A of the Abkari Act and therefore, in the light of the decision reported in **Narayana Velichappada** v. **Sub Inspector of Police and Another** (2007(4) KHC 748), the accused is entitled to get ## **CRL.A.NO.2115 of 2010** ## **:-4-:** acquittal. It is also the submission of the learned counsel that the case of the prosecution is rendered as doubtful and unreliable since there was no signature of the accused or PW1 on the label of the Mos., in spite of the fact that the prosecution has claimed that there is an endorsement in Ext.P2 mahazar to the effect that the labels in the Mos. contained the signatures of the accused and the prosecution witnesses. The further point argued by the learned counsel is that even according to the prosecution, Mos.2 and 3 were not seized from the physical possession of the accused and not at the time of seizure of the contraband article, the wash but subsequently that too after the arrest of the accused. But, according to the learned counsel, no confession statement is recorded and produced by the prosecution and therefore, recovery of Mos.2 and 3 cannot be treated as a legal recovery and evidence for the conviction of the appellant/accused. It is also the submission of the learned counsel that besides the conflict of time regarding the arrest of the accused, the arrest itself is doubtful since the witnesses mentioned in the arrest memo are not examined. So on the above grounds, it is the fervent plea of the learned counsel for an acquittal. 5. On the other hand, the learned Public Prosecutor vehemently submitted that the incident had taken place in a hilly area and the infirmities ## **CRL.A.NO.2115 of 2010** ## **:-5-:** regarding the time of arrest, the seizure of contraband article etc. have no legal consequence at all, especially when the seizure and arrest are proved by the prosecution with the support of the official witnesses as well as the evidence of independent witnesses. Thus, according to the learned Public Prosecutor, the trial court, after having considered the entire materials and evidence, especially the evidence of Pws.1 and 2, the official witnesses, who detected the offence, and whose evidence are supported by the evidence of PW3 who is an independent witness, has correctly held that the prosecution has succeeded in proving the case against the accused and such finding requires no interference. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have also perused the judgments of the trial court as well as the evidence deposed by the prosecution witnesses and also the other materials and evidence available on record. 7. At the outset, it is to be noted that according to the prosecution, they detected the offence and arrested the accused and effected the seizure of the contraband article on the basis of the information received by them on 19.11.2006. Thus, according to the prosecution, when Pws.1 and 2 reached at the place of occurrence in pursuance of the information, they found the accused ## **CRL.A.NO.2115 of 2010** ## **:-6-:** in possession of a white jerry can and on seeing them, the accused tried to escape, but they intercepted and questioned him and after convincing him regarding his guilty, arrested the accused from the spot and prepared Ext.P2 seizure mahazar and recovered MO1 jerry can. It is also the claim of Pws.1 and 2 thereafter on the basis of the information furnished by the accused, they recovered Mos.2 and 3 and two aluminium vessels, which are meant for illicit distillation of arrack, also were recovered. 8. In support of the challenge, the learned counsel for the appellant submitted that the regarding the arrest and seizure of the contraband article, there is no satisfactory evidence and the available evidence is conflict in nature and therefore, the same cannot be accepted as such. In the light of the above submission, now let us examine the evidence of Pws.1 and 2. When PW1 was examined, he had deposed in chief examination that on receiving the information from the Liquor Prohibition Committee, he reached the road which situates in front of the house of one Pramod Prasad at Sarvani. It is his further deposition that he was told by the members of the Liquor Prohibition Committee that the accused used to engage in illicit distillation of arrack at the bank of Papanasini river and on receiving such information, he further proceeded along with them towards the bank of the said river and thus, he had ## **CRL.A.NO.2115 of 2010** ## **:-7-:** seen two persons standing face to face and out of that two persons, he found the accused holding a white jerry can having capacity of 35 litres and the accused, on seeing them, tried to escape from there and they intercepted. Thus, according to PW1, he examined the contents in the jerry can which the accused was holding and by smelling and tasting, he could identify the contents (which is a liquid) of the jerry can as wash. According to him, the above facts were also realised by other members of the patrol party and the persons assembled there. Thus, according to PW1, the accused was arrested in accordance with law and procedure. The arrest memo is marked as Ext.P1. It is his further deposition that as pointed out by the accused, from the bush, he had recovered one aluminum pot having the capacity of 15 litres and another aluminum basin having the capacity of 10 litres. He had also stated regarding the drawing of sample from the wash, which was allegedly found in possession of the accused. According to him, he prepared Ext.P2 mahazar which was attested by the independent witness and accordingly, he recovered Mos. 1,2 and 3. Thereafter, he returned to the Excise Office and produced the accused and the contraband article and properties in the Excise Range Office, Mananthavady. During the cross-examination, it was brought that in Ext.P2, there are no words “ ഉചയ��� ശ�ഷ�. ” It is also brought during cross-examination that “P2-ല ## **CRL.A.NO.2115 of 2010** ## **:-8-:** ” ത�ര�ന�ല� അ��� ശ���എല� ��വസവ�� വവക�ശ�ര�" “പ�ന�ര�ഞ� ശപ�ക�ന ശ�മ����ത�യ�� ' നപന$�� ട�യ�ന� സമ&പ�ച� തടഞ�എ�� പറഞ� ക�ണ�ല' ”He had also admitted that the paddy field can be seen to the extent of 100 mtrs. from the house of Pramod Prasad. He had also deposed that Cws.4 and 5 were the main members of the party. He had admitted that such persons are not used to sign on the label of Mos. and there is no signature of the accused also. During cross-examination, he stated that he did not know regarding the existence of case between CW5 and the father-in-law of the accused . 9. PW2 is the Preventive Officer, who accompanied PW1, during the detection of the offence. During the chief examination, he had also deposed in terms of the prosecution allegation and in par with the deposition of PW1. He had admitted that the remaining contraband article after drawing samples was destroyed on the spot itself. He had also specifically stated “ക��സ�ല�� sample ക�പ�യ�ല�� അല+മ���യ� പ�ശതങള�ല�� PW(1)-ഉ� ശപത�യ�� സ�ക�കള�� ഒപ� വച Label -കള പത�ച�.”During the crossexamination, he had also admitted that paddy field to the extent of 100 metres can be seen from the house of Pramod Prasad. He had deposed that himself ## **CRL.A.NO.2115 of 2010** ## **:-9-:** and party reached at the spot along with a group of people and he has also admitted that from the place of occurrence, the house of Pramod Prasad can be seen. He has also deposed that during their investigation and search, no fire wood or kitchen was detected. When PW2 was examined, the defence put a suggestion to him to the effect that “ശപത�യ�� സ�ഭവവ�� മ�തല�കള�മ�യ� ബനമ�ല എ��� ഉടമസര�ല�നത ക�$�യ മ�തല�കള�മ�യ� CW(5) -�� വവര�ഗ7� ഉളള ശപത� ശപര�ല ച�മത� കളവ�യ� case എട�ത� പറഞത� �ര�യല. ” PW3 is the independent witness cited and examined by the prosecution to corroborate the evidence of Pws.1 and 2. PW3 was a loyal witness and he had deposed regarding the seizure and preparation of Ext.P2 mahazar. During the cross-examination, it is brought out that it was Biju -PW6 (CW5) is the person who informed the Excise Officials through telephone from the house of Thankamma. PW3 further stated that the information was given to the Excise Officials at about 11 a.m. He had further deposed that about within one hour, the Excise Party came in uniform and they reached at the river bank by walking from the house of Thankamma. He had stated that “ Excise-ക�ര� ശപത�നയ പ�ട�ക+ട� wash ബനവസ� നചയ�ത� ശപ�യ�. ഉശ;�� ഒര� മണ�ശയ�നട അവര ശപ�യ�. അശപ�ള അവ�നട 10-25 ആള��ര ഉണ�. ## **CRL.A.NO.2115 of 2010** ## **:-10-:** ഞ���� Biju -വ�� Excise-ക�ര�നട Jeep -ലതന� Excise Office-ശല�� ശപ�യ� .” During cross-examination, he had categorically admitted that he knew that there was quarrel by stabbing between PW6(CW5) and the father-in-law of the accused, but he does not know whether PW6 has got animosity towards the accused. He had also stated that the house of Thankamani situates in the side of the road, after the house of the Pramod Prasad, which leads to river. He had also stated that he did not witness anything prepared in writing by the Excise. But, he had stated that `ഒപ�$ത� പ�ട�ച സലത� നവച�ണ�. ' He had further deposed that 1ആ സമയ� Biju - അവ�നട ഉണ�. ഞങള എല�വര�� ശചര�� പ�ട�ച� നവച� Excise ക�നര ഏല�പ�ച�. ' PW3 further says that `ശപത�നയ വവക� 5 മണ��� പ�ട�ച�. വവക� 8.30-ഓനട Excise-ക�ര�� വകമ�റ�.' The other witness examined is PW4, who is a Preventive Officer attached to Mananthavadi Excise Range through whom Ext.P3 report ,Ext.P4 property list and Ext.P5 forwarding note were marked and proved. PW5 is the Excise Inspector of the Mananthavady Excise Range who conducted the further investigation and Ext.P7 scene mahazar and Ext.P6 chemical analysis report were marked through PW5. It is relevant to note that the prosecution has also ## **CRL.A.NO.2115 of 2010** ## **:-11-:** examined PW6, as I indicated earlier, who claimed to have along with the excise party at the time of search and seizure. It is relevant to note that when Pws.1,2 and 3 were cross-examined, the specific question put by the defence is to the effect that PW6 has animosity towards the accused, since PW6 himself and father-in-law of the accused had involved in stabbing. But, PW6 turned hostile. 10. The above evidence of prosecution has to be examined in the light of the contention raised by the learned counsel for the appellant. The first point raised by the counsel is to the effect that regarding the seizure and arrest of the accused, there is no convincing and acceptable evidence because the evidence of prosecution witnesses itself are contradictory in nature. In this juncture, it is pertinent to note that when PW3 was examined, he had categorically deposed that PW6 passed the information to the Excise Officials at about 11 a.m. and PW3 further deposed that within one hour, the Excise Officials came into the spot in uniform. If that be so, probably, the Excise party reached at the spot at any rate before 12 noon. But, Pws.1 and 2 says that they reached after noon. Though I have repeatedly gone through the depositions of Pws.1 and 2, they miserably failed to depose the exact time by which they arrived at the spot. When PW3 was examined, he had deposed that the accused was caught hold by ## **CRL.A.NO.2115 of 2010** ## **:-12-:** 5 p.m. by himself and others and thereafter, the accused was handed over to the Excise officials at about 8.30 p.m. It is relevant to note that PW3 was not declared as hostile and no cross-reexamination was held. In the absence of any specific time in the deposition of Pws.1 and 2, the evidence of PW3 can be preferred and I have no hesitation to hold that the arrest was made not by Pws.1 and 2 as claimed by them, but PW3 and others at 5 p.m. The corollary is that the seizure will also fall under doubt because PW6, who is expected to have vengeance against the accused was also person found along with PW3. According to me, the prosecution has not produced any independent evidence to substantiate the actual time of arrest though they have mentioned the name of certain persons in Ext.P1 arrest memo. So, the withdrawal of the persons, whose names shown in Ext.P1 from citing and examining before the court, render the case of the prosecution regarding the arrest of the accused more doubtful. If that be so, the prosecution evidence itself goes against the contents in Ext.P2 seizure mahazar, wherein it is stated that after the arrest of the accused, Mos.1 to 3 were seized before 6.20 p.m. So, Ext.P2, the most vital document relied on by the prosecution to prove the search, seizure and arrest of the accused cannot be believed even for a moment. It is also pertinent to note that according to the prosecution, Mos.2 and 3 were recovered on the arrest of ## **CRL.A.NO.2115 of 2010** ## **:-13-:** the accused as claimed by Ext.P2. But, according to PW3, the accused was entrusted with the Excise Officials at about 8.30 p.m. If that be so, the seizure of Mos.1 to 3 are also under suspicion. 11. As rightly pointed out by the learned counsel, if the prosecution version, especially that of Pws.1 and 2 is accepted, the accused is in their custody and at the time of taking into him custody, he was allegedly found in possession of 13 litres of wash in MO1 jerry can and the subsequent recovery of Mos.2 and 3 was, according to the prosecution, on the basis of disclosure made by the accused, which according to the learned counsel, cannot be believed. In support of the above submission, learned counsel placed reliance upon the decision of this Court reported in **Joseph** v. **State of Kerala** (2009(4) KHC 537). In the above decision, this Court has held as follows:- “........... _Even according to Pws.1 and 2, the only jerry can which the appellant was actually carrying was MO3 which is a black jerry can having a capacity of 5 litres. The other two jerrycans (Mos.1 and 2) each of 35 litres capacity were not seized from his custody or possession. The bushes from which those two cans were seized has not been proved to be under the ownership of or within the control of the appellant. The alleged confession by the appellant to PW1 that MO3 can was filled from the bulk quantity of arrack in Mos.1 and 2 jerry cans kept in the nearby bushes is also not admissible in evidence. Moreover, there is no evidence to show that it was the appellant who kept Mos.1 and 2 cans in the said bushes or that the land where the bushes are located belongs to or is in the possession of the appellant. Ext.P1 is the mahazar_ ## **CRL.A.NO.2115 of 2010** ## **:-14-:** _prepared by PW1 allegedly from the site itself. Except stating that the sample of 200 ml. was drawn from one of the three cans, the mahazar does not indicate the particular can from which the sample was drawn. But, at the stage of evidence, PW1 would say that the sample was drawn from MO3 can of 5 litre capacity carried by the appellant. This changed version by PW1 cannot be accepted for a moment and is not discernible from Ext.P1 contemporaneous mahazar prepared by him at the place of detection.”_ The factual situation is exactly the same as that of the case referred to above. In the present case, there is no disclosure statement as contemplated by Section 27 of the Evidence Act. It is also relevant to note that Mos.2 and 3 were allegedly recovered from the bush at the bank of river to which general public has access and therefore, the recovery of Mos.2 and 3 has no consequence and it is not safe to connect the accused with the crime based upon such recovery. It is also relevant to note that though in Ext.P2 seizure mahazar, it is specifically stated that the label pasted on the Mos contained the signature of the accused and PW1, there is no such label on Mos. and the above fact itself is sufficient to disbelieve the prosecution case as such, in the light of the other infirmities and contradictions of the prosecution case. It is also relevant to note that this Court has repeatedly held in **Narayana Velichappada** v. **Sub Inspector of Police and Another** (2007(4) KHC 748) that non-production of the residue or any other material before the Court would show that the alleged seizure was not ## **CRL.A.NO.2115 of 2010** ## **:-15-:** proved. In the present case also, as evident from the deposition of PW2, the remnants of the contraband article after sampling were destroyed then and there, in violation of the mandatory provisions contained in Section 53A of the Abkari Act. 12. It is further relevant to note that the specific case set up by the defence is to the effect that he was falsely implicated in the crime at the instance of PW6 because of the quarrel between PW6 and the father-in-law of the accused. The above defence cannot be brushed aside in the light of the facts and circumstances involved in the present case. As I pointed out earlier, regarding the arrest and seizure, at the time of arrest, there are a lot of contradictions and infirmities. It is also relevant to note that though the information was received by the Excise Officials at about 11 a.m. in the morning, there is no evidence regarding their actual arrival at the spot and the arrest of the accused was not properly proved because of the non-examination of the witnesses whose names are mentioned in Ext.P1. More over PW3 claims that the arrest was actually effected by himself and PW6 and others and subsequently, they handed over the accused to Excise Officials at about 8.30 p.m. and as such, the above evidence of PW3 remained in tact without any change from the part of the prosecution. In the absence of proper evidence ## **CRL.A.NO.2115 of 2010** ## **:-16-:** regarding the arrival of Pws.1 and 2 at the spot, and especially, in the light of the evidence of PW3 that the accused was arrested by himself and PW6 and that too 6 p.m. and handed over to Excise party at 8.30 p.m., it cannot be believed that Pws.1 and 2 seized the article from the possession of the accused and arrested the accused as stated in the mahazar. Therefore, the defence set up by the accused appears to be more probable and correct. 13. In the light of the above discussions and the findings and materials referred to above, I am of the view that the prosecution has not succeeded in establishing the allegations against the accused particularly, regarding the search, seizure and arrest of the accused beyond reasonable doubt and therefore, the accused is entitled to get the benefit of doubt and accordingly, I extend the benefit of doubt in favour of the accused. Thus, the conviction recorded by the trial court is set aside. In the result, this appeal is allowed setting aside the judgment dated 16.8.2010 in S.C.No.125 of 2008 of the court of Additional Sessions Judge (ADHOC) I, Kalpetta and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty. As the appellant/accused is acquitted as per the above findings, the appellant is entitled to get release from jail forthwith. Accordingly, the ## **CRL.A.NO.2115 of 2010** **:-17-:** Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for his immediate release **if he is not required in any** **other case** . **V.K.MOHANAN, Judge** MBS/ ## **CRL.A.NO.2115 of 2010** **:-18-:** **V.K.MOHANAN, J** . CRL.R.P.No. 69 OF 2001 **ORDER** Dated:23.6.2011 ## **CRL.A.NO.2115 of 2010** **:-19-:**