Sivan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934** ## **CRL.A.No. 40 of 2007 ( )** **-----------------------SC.412/2004 OF ADDL. SESSIONS COURT (ADHOC)-II, THODUPUZHA. ...............** **APPELLANT/ACCUSED: ----------------------------------** **SIVAN, S/O. VELAYUDHAN, MULAKAKKUDY HOUSE, VATHUKKUDY VILLAGE.** **BY ADV. SRI.S.RAJEEV.** **RESPONDENT/COMPLAINANT: --------------------------------------------** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, UDUMBANCHOLA, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CR.NO. 69/2000 OF UDUMBANCHOLA EXCISE RANGE).** **BY PUBLIC PROSECUTOR SMT.S. HYMA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.40 of 2007** ## **---------------------------------------------Dated this the 05[th] day of September, 2012** ## **JUDGMENT** The challenge in this appeal is against the conviction and sentence imposed against the appellant, for the offence under Section 55(g) of the Abkari Act, who is the sole accused in S.C.No.412 of 2004 of the court of the Additional Sessions Judge (Adhoc)-II, Thodupuzha. 2. The prosecution case is that at 4 p.m. on 31/10/2000 the accused was found in possession of 40 litres of wash for the distillation of arrack, which was detected in pursuance to a search conducted by PW.1, when he got information about the same. On the basis of the above allegation, Crime No.69 of 2000 was registered in the Udumbanchola Excise Range for the offence under Section 55(g) of the Abkari Act and on completing the investigation the charge was laid in the Judicial First Class Magistrate Court, Idukki, where C.P.No.8 of 2004 Crl.A.No.40/2007 : 2 : was instituted and subsequently the case was committed to the Sessions Court by the order dated 05/06/2004 of the learned Magistrate. Subsequently the case is made over to the present trial court for disposal. When the accused appeared, a formal charge was framed for the offence punishable under Section 55(g) of the Abkari Act which, when read over and explained to the accused, he denied the same and pleaded not guilty. Therefore, the trial was proceeded further during which the prosecution has adduced its evidence by examining PWs.1 to 3 and producing Exts.P1 to P8. MO.1 was also identified and marked. The trial court has finally found that, evidence given by PW.1 proved that the fact of the arrest of the accused from his house and seizure of MO.1 from the kitchen of the house of the accused and possession of wash for the distillation of arrack, and thus he had committed the offence punishable under Section 55(g) of the Abkari Act. Accordingly the accused is found guilty under Section 55(g) of the Abkari Act and he is convicted there under. On such conviction the appellant is sentenced to undergo rigorous imprisonment for one year Crl.A.No.40/2007 : 3 : and to pay fine of Rupees One lakh in default to undergo rigorous imprisonment for three months. It is the above finding order of conviction and sentence challenged in this appeal. 3. I have heard Sri.S.Rajeev, learned counsel for the appellant and Smt.S.Hyma, learned Public Prosecutor for the State. 4. The main witness for the prosecution in the present case is PW.1, who was then working as Excise Inspector of Udumbanchola Excise Range, and it was PW.1 who detected the crime. When he was examined, he had deposed strictly in terms of the prosecution allegation. According to him when himself and party were on patrol duty on 31/10/2000 and when he reached near Udayagiri Church at about 4 p.m., he got information that the accused has kept illicit liquor in his house. According to him he had prepared a search memorandum and sent the same to the court and thereafter proceeded to the house of the accused and the accused was available in that house and he conducted search and found 50 litres capacity of blue jar kept in the Crl.A.No.40/2007 : 4 : kitchen of the house. On examination of the jar he found that the same contained 40 litres of wash for the distillation of arrack. Thus according to PW.1, the accused was arrested then and there and sample of wash was taken in two 750 ml. bottles and the remaining wash was flowed out. According to PW.1 the entire proceedings is recorded in a mahazar. He had also stated that after the arrest of the accused and the seizure of the contraband article himself and party proceeded to the Excise Range Office and prepared the necessary documents. When PW.1 was examined, Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P3 crime and occurrence report, Ext.P4 property list, Ext.P5 copy of forwarding note, Ext.P6 search memo and Ext.P7 search list were marked through him. MO.1 jar was also identified and marked through PW.1. 5. The other witness examined is PW.2, who is the investigating officer, through whom Ext.P8 chemical analysis report was marked, PW.2, is the officer who laid the charge finally. Crl.A.No.40/2007 : 5 : 6. Besides the above two officials, one independent witness is examined from the side of the prosecution. He is none other than PW.3, but he turned hostile to the prosecution though he had admitted his signature in Ext.P1 mahazar. These are the evidences and materials referred to and relied on by the learned Judge of the trial court in support of his finding and for convicting the appellant. 7. The learned counsel for the appellant submitted that the prosecution has miserably failed to prove the conscious possession of the contraband articles allegedly recovered from the house of the accused. It is the contention of the counsel that absolutely there is no evidence regarding the drawing of the sample and therefore the prosecution has miserably failed to prove that Ext.P8 report is with respect to the contraband article allegedly recovered from the possession of the appellant. It is also the submission of the counsel that the prosecution has miserably failed to examine material witness in spite of the fact that PW.3 had turned hostile towards the prosecution and thus according to the Crl.A.No.40/2007 : 6 : counsel, the available evidence given by the official witnesses are not acceptable since those evidences are not supported by any independent evidences. The most important contention advanced by the counsel for the appellant is that there is an inordinate delay of 15 days in reaching the property in the court for which the prosecution has no convincing explanation. Argument is also advanced by the learned counsel for the appellant to the effect that the investigation is tainted as there is no compliance of Section 53-A of the Abkari Act. In support of the above contentions learned counsel cited the following decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353], **Lalitha** v. **State of Kerala** [2012(1) KLT 550] and **Ravi** v. **State of Kerala** [2011(3) KLT 627]. 8. On the other hand the learned Public Prosecutor submitted that as Section 53-A of the Abkari Act has application only with effect from 03/09/2002, and the date of occurrence in the present case was on 31/10/2000 and therefore Section 53-A of the Abkari Act is not attracted and applicable. It is also the contention of the learned Public Prosecutor that the dictum laid Crl.A.No.40/2007 : 7 : down in the decision in **Lalitha** v. **State of Kerala** [2012 (1)KLT 550] has no application since in Ext.P1 mahazar prepared by PW.1 and in the deposition of PW.1 has categorically stated about the drawing of the sample and hence the sample in the present case drawn by PW.1 represent the contraband article seized from the accused. It is also the contention of the learned Public Prosecutor that the accused himself has admitted that the PW.1 and party on the relevant time on 31/10/2000 reached the house of the accused and therefore there is no meaning in contending that the prosecution failed to prove the ownership of the house as that of the accused. It is also the contention of the learned Public Prosecutor that when PW.1 was examined he had categorically stated that the sample was under his safe custody and the said answer was given when the defence was cross-examined regarding the delay. It is also the contention of the learned Public Prosecutor, on the basis of the evidence of PW.1, that though PW.1 produced the sample before the committal court, the said court was not prepared to receive the same as the documents were not available in Crl.A.No.40/2007 : 8 : that court at that point of time. Thus according to the learned Public Prosecutor there was no delay from the part of the prosecution and even if there is delay, the same is properly explained. It is also the contention of the learned Public Prosecutor in the light of the decision reported in **State of U.P.** Vs. **Smt.Noorie Alias Noorjahan and others** [AIR 1996 SC 3073] and **Abdul Rasheed** Vs. **State of Kerala** [ 2008(3)KLT 150] there is no illegality in convicting the accused on the basis of the sole evidence of the official witness even if the evidence of official is not supported by independent witness especially when the evidences of official witness are free from doubt. Therefore according to the learned Public Prosecutor no interference is warranted in the findings of the court below. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court, evidence and materials on record. In the light of the rival contentions advanced by the learned counsel for the appellant and the learned Public Crl.A.No.40/2007 : 9 : Prosecutor the question that emerges for consideration is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 55 (g) of the Abkari Act. 10. I have already referred to the evidence and materials available on record. The specific case of PW.1 is that when himself and party were on patrol duty on 31/10/2000 and when reached near at Udayagiri church at about 4 p.m. he got the information to the effect that the illicit liquor had been kept in the house of the accused and therefore after sending Ext.P6 search memo he proceeded to the house of the accused. Though Ext.P6 is dated 31/10/2000, the same seems to have been received by the court only on 04/11/2000, which is also the date on which the court received the other documents obtained from the Judicial First Class Magistrate Court, Nedumkandom. When P.W.1 was examined he had deposed that he put Ext.P6 search memo in the post box. No explanation is forthcoming for the delayed receipt of Ext.P6 by the court. It is also relevant to note that the information allegedly received by PW.1 is about the Crl.A.No.40/2007 : 10 : possession of the illicit liquor and its transaction. But in Ext.P1 mahazar what recorded regarding the information is that : “ ഉദയഗ�ര� പളള�ക��മ�പ� എത�യപ��ള ട� . പപരരഴ�ത�യ ശ�വന തര� വ�ട�ല ഛ�ര�യ� ന�ര%�ക�നത�ന� പ�കര�ട�ത�യ പക�ട �(ക�ച�ര�ക�നത�യ� വ�ശ+��പയ�ഗ,മ�യ അറ�വ� ക�ട�യതന ��ര�ച� ന�യമ�ന ��രണ� പശ�ദനരമര%� തയ�റ�ക� ബഹ�മ�നര�ട പക�ടത�ക� അയചപശഷ� ��ക�കള �ഹ�ത� ട�. വ�ട�ല എത�.” 11. So the evidence of PW.1 regarding the information is not tallying with what was recorded in Ext.P1 mahazar. The information recorded in Ext.P6 is also not tallying with the information mentioned in Ext.P1 and hence Ext.P6 is not free from doubt especially due to belated receipt of the same in the court and that too on the date of receipt of other documents brought in person. It is also relevant to note that as pointed out by the learned counsel for the appellant Ext.P1 mahazar was allegedly prepared at 4 p.m. on 31/10/2000. But PW.1 in his deposition stated before the court that the information was received at 4.30 on 31/10/2000 when himself and Crl.A.No.40/2007 : 11 : party reached near at the Udayagiri church while they were on patrol duty. So the time mentioned in Ext.P1 and stated during the deposition of PW.1 is not reconciled. 12. In this juncture it is relevant to note that the most important point raised by the counsel in assailing the judgment of the trial court is about the delay in reaching the property in the court. Admittedly the alleged seizure was effected during the evening of 31/10/2000. Ext.P4 property list and Ext.P5 forwarding note show that the properties were produced before the court, namely the committal court, only on 15/11/2000. During the chief-examination of PW.1 no explanation is given for producing the properties belatedly that after two weeks from the date of the alleged seizure. It is true when the defence cross-examined PW.1, regarding the custodian of the samples and the properties PW.1 has stated that the samples were under his custody. Still then no explanation and no data are mentioned in the deposition of PW.1 as to how he had kept the properties without any room for tampering the same. Except the mere claim that the properties were under the safe Crl.A.No.40/2007 : 12 : custody of PW.1, he had not stated the exact place where the samples were stored or the measurements taken by him to keep the same from tampering etc. Though during the cross-examination PW.1 has stated that the material objects were not received by the committal court as the documents were not available in that court, to substantiate these aspects also there is no evidence or materials. In this juncture it is pertinent to note that even according to PW.1, Ext.P1 search list was also prepared on 31/10/2000. But these documents are also not produced before the Nedumkandom court, when the other documents, that Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P3 crime and occurrence report and remand applications were produced. In the communication issued from the Judicial Magistrate of the First Class, Nedumkandom court to the committal court it is specifically mentioned that the said court has not received any material objects. It is also relevant to note that those mentioned documents were received in the committal court only on 04/11/2000 on which date Ext.P6 search memo received by the committal court, but on that Crl.A.No.40/2007 : 13 : day also the properties were not produced before the committal court for which also there is no explanation. So the unexplained delay, in producing the properties either in the Judicial Magistrate of the First Class, Nedumkandom or in the committal court is a vital factor, which goes against the prosecution. 13. It is in this juncture the contention advanced by the counsel for the appellant about the failure of the prosecution to examine the independent witness, become relevant. I have already referred to the contradiction between the evidence of PW.1 and the documents including the time factor. There is also delay of two weeks in producing properties before the court for which there is no explanation. Therefore had the prosecution examined independent witness and adduced independent evidence, the correctness of the prosecution evidence could have been examined on the basis of such independent evidence. In this juncture it is also relevant to note that on a perusal of the Ext.P1 it would show that, besides the independent persons mentioned therein, Excise guard who accompanied PW.1 was also a witness Crl.A.No.40/2007 : 14 : and attestor to Ext.P1 but that Excise guard has also not been examined as a witness for the reason best known to the prosecution. Here though PW.3 was examined he had turned hostile and he had categorically stated before the court that the Excise Officials has brought a jar from the property belonging to one Santhosh. Except a casual question, the prosecution did not subject to PW.3 to any severe cross-examination to show that PW.3 deposed in such a manner so as to help the accused. As correctly pointed out by the learned counsel for the appellant, though there were nine charge witnesses, the prosecution has opted to examine only PWs.1 to 3 even, PW.3 turned hostile. So the non-examination of the charge witnesses and independent witnesses are also factors that again go against the prosecution especially when the evidence of PW.1 is not fully free from doubt and contradiction. Hence the decision reported in **State of U.P.Vs. Smt.Noorie Alias Noorjahan and others** [AIR 1996 SC 3073] and **Abdul Rasheed Vs. State of Kerala** [ 2008 (3)KLT 150] relied on by the learned Public Prosecutor is not applicable in the present case. Crl.A.No.40/2007 : 15 : 14. On the strength of the decision of this Court reported in **Lalitha v. State of Kerala** [2012(1) KLT 550] the learned counsel submits that Ext.P1 cannot be believed. But in the present case as rightly pointed out by the learned Public Prosecutor, though PW.1 has not claimed that he himself prepared Ext.P1, from Ext.P1 it can be seen that the same is prepared by PW.1. Hence the above is not sustainable. 15. Another important contention raised by the learned counsel for the appellant is that the prosecution has miserably failed to prove that the contraband article was in the exclusive possession of the accused. In support of the contention counsel placed reliance on the decision reported in **Ravi v. State of Kerala** [2011(3) KLT 627]. On the other hand the learned Public Prosecutor submitted that the accused is not disputing the search conducted in his house and therefore the prosecution is not bound to prove that the house in question exclusively belong to the accused. I had already referred to the deposition of PW.1 and also perused Ext.P1 mahazar. Absolutely there is no evidence Crl.A.No.40/2007 : 16 : to show that the house from which the alleged contraband article was seized is exclusively within the control and possession of the accused. There is no whisper in the evidence of PW.1 to the effect that there is no other inmate in the house other than the accused. According to me, if the prosecution has succeeded in proving that the accused is in the exclusive possession and control over the house in question, the prosecution need not further prove that the accused was in exclusive possession of the contraband article. But in the absence of any positive evidence to the effect that there is no other inmate in the house, it was incumbent upon the prosecution to establish that the accused is in the exclusive possession of the contraband article. Therefore according to me the contention advanced by the learned counsel for the appellant in this regard is sustained. 16. In the light of the submission made by the learned Public Prosecutor with respect to Section 53-A of the Abkari Act the contention advanced by the learned counsel is not sustainable. Crl.A.No.40/2007 : 17 : 17. The resultant conclusion of the above discussion is that the prosecution has not succeeded in proving its allegation against the appellant beyond reasonable doubt and therefore the appellant is entitled to get benefit of doubt. Hence according to me the conviction recorded by the trial court against the appellant cannot be approved and accordingly the same is set aside. In the result, this appeal is allowed setting aside the judgment dated 04/12/2006 in S.C.No.412 of 2004 of the court of the Addl.Sessions Judge (Adhoc-II), Thodupuzha and the appellant/accused is acquitted of all the charges leveled against him and bail bond, if any, executed by him is cancelled and he is set at liberty. ## **V.K.MOHANAN, JUDGE** skj