SANTHA and SUJATHA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936** ## **CRL.A.No. 385 of 2004 (C)** **-------------------------AGAINST THEJUDGMENT IN SC NO.261/2000 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 09-01-2004** **............................................** **APPELLANT(S)/ACCUSED : -------------------------------------** **1. SANTHA, D/O. CHELLAMMA, CHARUVILA VEEDU, PULIKUZHITHADOM, KOTTAKKAKOM CHERY, PARIPPALLY.** **2. SUJATHA, D/O. OMANA, CHARUVILA VEEDU, PULIKUZHITHADOM, KOTTAKKAKOM CHERRY, PARIPPALLY.** ## **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** **RESPONDENT(S)/RESPONDENT :** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV.MADHUBEN, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** ## A. HARIPRASAD, J. ................................ Crl.Appeal No. 385 of 2004 () ........................................ Dated this the 3[rd] day of December, 2014 ## JUDGMENT This appeal is against conviction of the accused in Sessions Case No.261 of 2000 on the file of the Additional Sessions Court, Kollam. They were tried and convicted for offences punishable under Section 55 (a) and (g) of the Abkari Act with the following allegations : On 06.08.1998 at about 11.50 a.m. the appellants were found engaged in manufacturing illicit arrack from a house bearing No.XI/17 of Kalluvathuckal Panchayat and they were possessing utensils and materials for manufacturing illicit arrack. 2.At the time of trial, six witnesses were examined and four documents were marked on the side of prosecution. M.Os.1 to 7 are the material objects. - 3.Heard the learned counsel appearing for the appellants Crl.Appeal No. 385 of 2004 () 2 and the learned Public Prosecutor. 4.Learned counsel for the appellants submitted that, the oral evidence adduced by the prosecution witnesses are incongruent to one another. According to him, on all material aspects there are contradictions in the evidence adduced by the witnesses. P.Ws.1 and 2, are the independent witnesses cited to prove the search and seizure, but they turned hostile to the prosecution. P.W.3 is a woman constable who was working in Kollam East Police station at the material time. According to her version in the chief examination, she went to Parippally police station at about 10 a.m. as directed by the woman S.I of the above said police station. At about 11.30 a.m. she went to a place called Pulikuzhi for effecting the search. She testified that, the appellants were found manufacturing illicit arrack from their house. P.W.3 conducted the body search of the appellants and arrested them. In cross examination, P.W.3 stated that, she reached at the station at about 10.30 a.m. on the 3 Crl.Appeal No. 385 of 2004 () said date. At about 11.30 a.m. she reached at the place of detection along with another police officer. The case suggested by the defence that she did not witness anything was denied by P.W.3. 5.P.W.4 and 5 are the police constables, attached to Parippally police station who went along with P.W.6 at the time of search and seizure. P.W.5 and 6 deposed that on 06.08.1998 they were in the police party along with P.W.6 for law and order patrol duty. According to them at about 11.30 a.m. they reached at the place called Pulikuzhi junction. Then, P.W.6 got an information that the appellants were manufacturing illicit arrack from their house. Immediately, P.W.6, through wireless, called P.W.3 to come over. A search list was prepared and it was sent to the court. When they entered the house, they found the appellants manufacturing illicit arrack by using specially designed aluminum vessels. They found wash and distilled arrack at the place of detection. These two witnesses deposed that the 4 Crl.Appeal No. 385 of 2004 () officers and the independent witnesses smelt and tasted illicit arrack from the place of detection. Thereafter, two bottles, each containing 350 m.l, was taken as samples from the wash. The can containing arrack was sealed and it was sent to court. It is the consistent version of these witnesses that the sample from illicit arrack was taken from the court. 6.These two witnesses were subjected to cross examination. P.W.4 when cross examined stated that at about 11.30 a.m. on the date of detection, P.W.6 called P.W.3 to the place of detection over wireless set. The learned counsel for the appellant contended that, if we consider the time of detection as stated by P.W.3 on one hand and P.Ws.4 and 5 on the other hand we will find a total mismatch. Likewise, the time spent by the officers in the house of the appellants for detecting the offence is also not harmonious. P.W.5 when cross examined stated that they started patrol duty at about 10 a.m. and P.W.3 was called immediately on reaching at 5 Crl.Appeal No. 385 of 2004 () Pulikuzhi junction. 7.P.W.6 is the detecting officer. He was working as SI of Parippally police station on 06.08.1998. He also deposed that, he got an information when they reached at Pulikuzhi junction that the appellants were illegally manufacturing arrack from their home. According to his evidence, the time was about 11.50 a.m. This statement of P.W.6 does not go well with that of P.Ws.4 and 5. P.W.6 also deposed that utensils and implements required for manufacturing arrack were found out from the house of the appellants and actually they were engaged in distilling arrack at the time of detection. In cross examination, P.W.6 stated that, he reached at Pulikuzhi junction at 11.30 a.m. at that time P.Ws.3 and 5 were present along with him, which is a materially different version. According to the prosecution case P.W.3 was called to the place later. 8.The learned counsel for the appellants drew attention of Crl.Appeal No. 385 of 2004 () 6 this Court to Exts.P3 and P3(a) and contended that, though, the alleged search and seizure was on 06.08.1998, the property in the case was produced only on 26.08.1998. Delay of 20 days in producing the property involved in the case was not satisfactorily explained either by P.W.6 or by any other witnesses. 9.According to P.W.6, the articles were entrusted to the station writer. It is also his case that due to paucity of space court insisted that, the property need be produced only when directed. There is absolutely no document to prove all these contentions. In the absence of any link evidence to connect the sample analysed by the chemical examiner to that of the sample drew from the liquor allegedly recovered from the appellants, the prosecution has to suffer on account of the binding precedent in _**Ravi v. State of Kerala [2011 (3) KLT 353]**_ . That apart there is no material to show that the sample from M.O.1 can containing illicit arrack was taken by one of the officers of the court and 7 Crl.Appeal No. 385 of 2004 () none was examined to prove this contention. That apart the inconsistent versions in the oral evidence also weaken the prosecution case. Hence, the appellants are entitled to get the benefit of doubt in this case. In the result, this appeal is allowed. Conviction of the appellants under Section 55(a) and (g) awarded by the court below is hereby set aside. They shall be set free forthwith, if not wanted in any other case. Their bail bonds shall stand cancelled. Sd/A.HARIPRASAD, JUDGE. AMV/04/12/ /TRUE COPY/ P.A.TO JUDGE