Ravi alias Raveendran and ThankaraJ v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939** **CRL.A.No. 2702 of 2008 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 11/2006 of ADDL.SESSIONS JUDGE, FAST TRACK NO.II, PALAKKAD** ## **APPELLANTS/ACCUSED:** **--------------------** ## **1. RAVI ALIAS RAVEENDRAN, S/O.PAZHANAN,** **AGED 38 YEARS, VALEKKADU VEEDU, NOCHUPULLI, MUNDUR, PALAKKAD.** **2. THANKARAJ, S/O.KARUPPAN, AGED 38** **YEARS, VALEKKADU VEEDU, NOCHUPULLI,, MUNDUR, PALAKKAD.** ## **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENT/COMPLAINANT:** ## **--------------------------** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.K.K.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.2702 OF 2008** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of March, 2017 ## **JUDGMENT** This appeal is preferred against the judgment of conviction dated 17.11.2008 made in S.C.No.11/2006 on the files of the Additional Sessions Judge, Fast Track Court No.11, Palakkad. The conviction is under Sections 8(1) & (2) of the Abkari Act. Originally, along with the offence under the Abkari Act, they were also prosecuted for offence under Section 468 and 471 r/w Section 34 of IPC, but the appellants were found not guilty for the said offences. The facts in a nut shell is that on 22/02/2005 at about 5.20 a.m., accused persons were seen moving on a motor bike with a forged Reg.No.KEK 1321, transporting 10 litres of illicit arrack in a tyre tube and thereby committed the offence. 2. The Prosecution altogether examined seven witnesses as PWs 1 to 7 and Exts.P1 to P13 were marked. MOs 1 and 2 were also Crl.Appeal No.2702/2008 2 marked. After appreciating the evidence, the court below convicted the accused of the offence under Sections 8(1) & (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for four months each and to pay a fine of Rs.1,00,000/- each with default rigorous imprisonment for six months each. They were acquitted for offence under the IPC. The said conviction and sentence is under challenge. 3. The prosecution case is that on 20.02.2005 at 5.20 p.m. accused were seen transporting illicit arrack and thereby they were arrested. The learned counsel for the appellant drew my attention to Ext.P3 seizure mahazar, wherein it is stated that accused was arrested at 5.20 hours from the spot. The learned counsel also drew my attention to Ext.P1 arrest memo. As per the said document, time of arrest is shown as 22.02.2005 at 5.20 p.m. It is the submission that the curious aspect is that a crime number as 107/2005 of North Town Police Station is seen written therein. It is an indication that it is not a document prepared at the time of arrest, but a document created for the Crl.Appeal No.2702/2008 3 purpose of this case. The submission of the learned counsel is that when such a document is created by Police, tampering of the contraband cannot be ruled out. It is submitted that even though seizure mahazar contained the specimen seal, the forwarding note is not having any specimen seal. It is submitted before me that, allegedly the article was in a black tyre tube. Admittedly, the said contraband contained in the tube was not transferred to any other container. Another aspect highlighted is that during the cross examination of PW1, he admitted before the court that he cannot say how much liquor it contained. During cross examination he admitted that the quantity asserted is the quantity that is stated to him by the accused. It is the submission that when the detecting officer himself is not sure regarding the quantity of the liquor seized, by no stretch of imagination can it be said that it was actually about ten litres. It is also submitted that when the forwarding note is lacking the specimen seal and further when arrest memo is not reliable, arrest itself becomes doubtful. It is the Crl.Appeal No.2702/2008 4 submission that as per the dictum laid down in **Krishnan H. State ( 2015 (1) KHC 872)** , when there is no seal seen in the forwarding note, the connecting link in between the seizure with the article analysed will be missing. 4. Another point argued by the learned counsel before me is that in this case there are two accused. It is the positive case of the prosecution that the liquor was seen found in a black tyre tube. Then, admittedly as per the prosecution case possession of the contraband was with accused No.2. The learned counsel submitted that when the liquor is inside a rubber tube, the knowledge regarding the same cannot be attributed to the rider. When, the knowledge cannot be attributed to the rider, he cannot be convicted. In support of the said contention, the learned counsel relied on the decision of the Hon'ble Apex Court in **Narcotics Control Bureau Jodhpur v. Muralidhar Soni ( 2004 (5) SCC 151)** . The learned counsel thereafter submitted before me that when the trial took place, there was no identification separately by the Crl.Appeal No.2702/2008 5 witnesses to point out that among them who was riding the bike. The relevancy of this submission is that if the person who was holding the tyre tube was not specifically identified, a blanket identification of the accused by the witnesses that they were on the vehicle will not be sufficient to convict any of the accused for possession of arrack. The gist of the submission is that when the evidence of identity in regard to the rider and the possessor of the contraband is lacking, a conviction on the basis of the available evidence before this court will not be sufficient to convict the person who was allegedly on the back side of the bike carrying the contraband. 5. The learned Public Prosecutor submitted that in this case vehicle is not a car or anything like that, but only a motor bike and when a person is carrying arrack that also in a bike, it can be inferred that other person was also conscious and aware of the same. It is the submission that when it is a bike and the article seized was seen on the said bike who is in control of the vehicle can be construed as in Crl.Appeal No.2702/2008 6 possession of the said article. 6. In this case when the materials are appreciated, the point highlighted by the learned counsel that arrest memo contained the crime number is very relevant. A crime number cannot be written in a arrest memo. When there is spot arrest, arrest memo with crime number can be only treated as a arrest memo prepared from the police station. When the positive case of the prosecution is that he was arrested from the spot, as evident from Ext.P3, the whole case comes under a shadow. When the whole case is coming under a shadow, the fact that forwarding note is lacking the specimen seal is also gets its own importance. It is also pertinent to note that the article was not measured. It is not a can. It is a tyre tube. Actually what was the quantity it contained should have been ascertained by the detecting officer or the investigating officer. 7. I have very carefully perused the evidence of PW1. He intercepted the vehicle and arrested the accused. But during cross Crl.Appeal No.2702/2008 7 examination, a specific suggestion was put to him regarding the arrest memo and the suggestion was that it was prepared from the station. He denied the suggestion. Witness further deposed that the quantity is asserted from the accused himself. There is nothing to show that what was the actual quantity it contained. It is also relevant to note that there is no sample seal in the forwarding note. As per the dictum laid down by this court in **Krishnan's** case (supra) there should be specimen seal. No property clerk examined in this case to establish identity of property. There is also force regarding the identity of the accused. As **'** per the dictum laid down in **Narcotics s** case (supra), it is held that while the person was carried on a scooter and the pillion rider was carrying the article in a bundle of clothes, the knowledge cannot be attributed to the rider. Surely, in this case, it is a black tyre tube. It is to be remembered that it is not a can or bottle, but a rubber tube. It is not in evidence that that itself was smelling arrack or ethyl alcohol when it was seized i.e. by smell, it could have been detected is not Crl.Appeal No.2702/2008 8 apparent. Thus, considering the identity before the court i.e. there is no separate identification between the pillion and the rider, I feel that the appellants are entitled for benefit of doubt. Thus, the conviction and sentence passed by the court below against the appellants are set aside. The appeal is allowed. The bail bonds stand cancelled. **K.P.JYOTHINDRANATH JUDGE** sv.