Retnakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** **CRL.A.No. 591 of 2006** **AGAINST THE JUDGMENT IN SC 1226/2000 of ADDL. SESSIONS JUDGE, FAST TRACK (ADHOC)-II, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **RETNAKARAN, S/O.KOCHUMMINI KANI, VAYALARIKATHU VEEDU, PINARUMMOODU, THEVIYARUKUNNU, KOTTAKKAKOM MURI, VITHURA VILLAGE.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PP. SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.No. 591/2006 2 ## **JUDGMENT** This appeal is directed against the judgment dated 22.2.2006 in S.C.No.1226/2000, on the files of the Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram (for short 'the court below'). The appellant is the sole accused in the case. He was found guilty by the court below for the offence punishable under Section 55(a) of the Abkari Act (fort short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. The appellant was also directed to undergo simple imprisonment for three months on his default to pay the fine. The aggrieved accused has approached this Court in the captioned appeal. 2. Sri.Sasthamangalam S.Ajithkumar, the learned counsel for the appellant has contended that the evidence in the case on hand was not properly appreciated by the court below and the guilt of the accused under Section 55(a) of the Act, was arrived at on a wrong perception of evidence. According to the counsel independent evidence is totally lacking in the case on hand and the court below's finding of guilt was totally based on the oral evidence of the official witnesses, which also lack corroboration in CRL.A.No. 591/2006 3 material particulars. The further contention of the learned counsel was that though the notice and arrest memo were deposed by an official as prepared from the spot, those did not find a place in the evidence on record. It is contended by the learned counsel that arrest memo and arrest notice are also not produced and marked in evidence and the indication therefore was that those documents were not prepared at the time of arrest. The learned counsel has also vehementally urged that forwarding note is not produced and marked in evidence and that is a factor fatal to the prosecution. Raising the contentions as above, the learned counsel has pleaded for a reversal of the judgment. 3. The learned Public Prosecutor submitted on the contrary that the court below had appreciated the evidence in the proper perspective and correctly arrived at the finding of guilt of the accused. According to him, the judgment is not vitiated by any illegality, impropriety or infirmity and is not liable to be interfered with. 4. Bearing the rival arguments as above in mind, the evidence on record is scrutinized. As put by the learned counsel, arrest memo and arrest notice were not marked in evidence. But during the course of examination, PW2 has stated in the box that CRL.A.No. 591/2006 4 arrest memo and arrest notice were prepared and entrusted with the Police Station, at the time when the contraband and the accused were handed over there. But it is pertinent to note that those documents are not available in evidence. In the aforesaid circumstances, there is basis to view that appellant was arrested without the formalities required for making it legal. Therefore, the arrest can only be taken as illegal. 5. The merit of the contention of the learned counsel that forwarding note is not prepared in the case on hand and for want of marking of that document in evidence, the trial is vitiated, is considered by this Court in the backdrop of the evidence available on record. As revealed from the evidence, the properties reached the court on the date immediately succeeding the date of seizure itself. As deposed by PW1, a specimen seal was impressed on the contraband articles from the spot and an impression of the same was also put in Ext.P1 seizure mahazar prepared from the spot. Going by Ext.P1, a description to that effect is found and therefore, version of PW1 has basis. The seziure mahazar also bears the impression of specimen seal. The properties seized were also evidenced as reached the court without any delay. The endorsement from the court on the list of property evidences that CRL.A.No. 591/2006 5 the properties have reached the court in a tamper proof condition. From the contents of Ext.P4 the certificate of analysis of the samples prepared by the Chemical Examiner, it is evidenced that, the sample was produced therein in an untampered condition. Therefore, there is absolutely no merit in the contention of the learned counsel that for want of marking of forwarding note, the prosecution case is vitiated and is discarded. 6. As rightly put forth by the learned counsel, independent evidence is totally lacking in the case on hand. It is pertinent to note that an independent witness was cited by the prosecution and examined before the court as PW1. It is true that he turned hostile to the prosecution. But the case of the prosecution is not liable to be thrown out for the reason that the independent witness turned hostile. The corroborative evidence of official witnesses are available and it cannot be thrown out simply for the reason that independent witness examined turned unloyal to the prosecution. Undoubtedly, scrutiny of the oral evidence tendered by the official witnesses would establish the case of the prosecution in a clear manner. 7. The court below has charged the accused for the offence under Section 55(a) of the Act, which reads as follows: CRL.A.No. 591/2006 6 “ **55. For illegal import, etc** .- Whoever in contravention of this Act or of any rule or order made under this Act. (a) imports, exports, (transports, transits or possesses) liquor or any intoxicating drug; or xx xx xx xx shall be punishable. (1) For any offence, other than an offence falling under clause(d) or clause (e), with imprisonment for a term which may extend to 10 years and with fine which shall not be less than rupees one lakh, and......” 8. This Court had laid the dictum in **Surendran v. Excise Inspector [2004(1) KLT 404]** that in order to attract the offence under Section 55(a) of the Act, the person in possession of the liquor must have been possessed the same in the course of import or export. In the case on hand the charge framed by the court is extracted hereunder. “That you in contravention of the Provisions of Abkari Act I of 1077 on 8.8.99 at 9.30 AM were found in possession of a white plastic can of 10 litre size containing 9½ litres of illicit arrack for sale and a glass tumbler in the property of Sankaran Kani which is in the southern side of the Panchayat well which is in the southern side of the road near to Theviyarukunnu, Pinarum moodu junction in Kottakkakam Muri in Vithura Village and thereby committed an offence punishable CRL.A.No. 591/2006 7 under Section 58, 8, 55(a) and (b) of Abkari Act and within the cognizance of this court. That I direct you be tried for the said offence before this court.” 9. The charge is totally silent of the allegation that the accused was in possession of the contraband in the course of import or export. Therefore, the accused was not put to notice that an offence under Section 55(a) of the Act was charged against him and he has to face trial for that. Section 211 Cr.P.C provides that every charge under the Code of Criminal Procedure shall state the offence with which the accused is charged. Under subsection (3) of Section 2(11) Cr..C it is provided that if the law which creates an offence does not give it any specific name, so much of the definition of the offence must be stated so as to give the accused notice of the offence with which he is charged. Therefore the purpose behind framing of charge is to inform the person, the offence for which he shall be tried, so as to enable him to defend the case properly. In the case on hand the accused cannot be said to have been given a precise information about the offence alleged against him. For the reason itself, the trial cannot be said to be a valid one. The impugned judgment suffers for the reason. CRL.A.No. 591/2006 8 In the result, the Criminal Appeal succeeds and is allowed. The impugned judgment is set aside. The bail bond executed by the accused stands cancelled and he is set at liberty forthwith. **Sd/-** **MARY JOSEPH** **JUDGE** ab