Soman v. Excise Inspector, Kuttanad Range and State represented by Public Prosecutor

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 Crl.Rev.Pet.No. 508 of 2000() ----------------------------CRA.240/1997 of ADDL. SESSIONS COURT, ALAPPUZHA C.C.NO. 125/96 OF JFCM, RAMANKARY, (CRIME NO.11/96 OF KUTTANAD EXCISE RANGE) .................... REVN. PETITIONER: - ------------------ SOMAN, S/O. KUNJAN PAPPAN, VELIKKETTIL VEETTIL, MAMPAZHAKARY , KUTTANAD. BY ADV. SRI.ASP.KURUP SMT.P.K.BEENA RESPONDENTS: ------------- 1. THE EXCISE INSPECTOR, KUTTANAD RANGE. 2. STATE REPRESENTED BY THE PUBLIC PRSOSECUTOR. BY ADV. EXCISE INSPECTOR [PARTY] R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-2-2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2811 OF 2000 IN CRL.R.P.NO.508 OF 2000 DISMISSED. 19-2-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN,J.** ---------------------------------------------CRL.R.P.No.508 of 2000 ---------------------------------------------Dated, 19[th] February, 2008 ## **ORDER** The Revision Petitioner herein in the sole accused in C.C.No.125/96 for the offence punishable under section 55 (a) of the Abkari Act. He was found guilty and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo simple imprisonment for a period of 3 months. Challenging the trial court judgment, the revision petitioner had preferred an appeal before the Additional Sessions Court, Alappuzha which was dismissed by judgment dated 3-4-2000 in Crl.A.No.240 of 1997. It is the above judgments of the courts below and the conviction and sentence passed against the revision petitioner is challenged in this Crl.R.P. 2. The prosecution case is that when PWs 3 and 4 were on patrol duty on 10-2-1996, found the petitioner/accused in possession of 10 litres of illicit arrack at 1.15 p.m. on that day at the southern side of Muttel CRRP 508/2000 ## **-:2:-** bridge. On seeing the petitioner/accused holding the M.O-1 can, the excise party intercepted him and on examination found that he was carrying illicit arrack in a can and accordingly the same was seized. Ext.P1 is the scene mahazar. Ext.P2 occurrence report was filed before the court on 13-2-96. On the basis of the seizure, crime No.11/96 of Kuttanad Excise Range was registered for the offence punishable under sector 55(a) of the Abkari Act. Pursuant to the appearance of the petitioner/accused after supplying the materials and documents, particulars of the offences were read over and explained to him to which he pleaded not guilty which necessitated further trial during which PWs 1 to 4 were examined on the side of the prosecution and marked Exts.P1 to P4 as documentary evidence. No evidence either documentary or oral produced from the side of the defence. During trial, a Jerry can was identified and marked as M.O.1 material object. After the trial, and on appreciation of the evidence and the materials on record, the trial court found that the petitioner accused is CRRP 508/2000 ## **-:3:-** guilty of the offence punishable under section 55(a) of the Abkari Act and accordingly he is sentenced to undergo R.I. for six months and to pay a fine of R.1000/- and in default of payment of fine he is further directed to undergo simple imprisonment for 3 months. Aggrieved by the above order of the trial court, the accused/revision petitioner preferred this Crl.AppeaL No.240/97 before the Sessions Court, Allappuzha. By judgment dated 3-4-2000 of the Additional Sessions court, Alleppuzha, the appeal was dismissed confirming the conviction and sentence passed by the trial court. It is the above conviction and sentence and the judgments of the courts below are challenged in this Crl.R.P. 3. I have heard the counsel appearing for the revision petitioner and also the learned public Prosecutor. 4. The learned counsel appearing for the revison petitioner submitted that there is no independent evidence to support the prosecution case. Even according to the Prosecution, the seizure was witnessed by PWs 1 and 2 but they were turned hostile and as such there is no independent CRRP 508/2000 ## **-:4:-** evidence to prove the prosecution case except the interested version of PWs 3 and 4 who are the official witnesses. It is pointed out by the learned counsel for the petitioner that though the alleged seizure was on 10-2-96, Ext.P2 occurrence report was filed before the court only on 13-2-96 and there is considerable delay in reaching Ext.P2 report before the court below and, in the meanwhile, there is sufficient time for manipulation and to create false case against the revision petitioner. Another ground urged by the petitioner is that there is inordinate delay in reaching the material objects before the court below. The counsel pointed out that though the incident was on 10-2-1996 and even though the articles were seized, according to the prosecution, on 10-2-96 itself, the same were produced before the court only on 19-3-96. It is also pointed out by the counsel that there is no document to show the seizure and also that no search list was prepared. The learned counsel took me through the deposition of PW-3 who prepared Ext.P1 scene mahazar and conducted investigation. CRRP 508/2000 ## **-:5:-** According to the counsel, no explanation is forthcoming from the part of PW-3 for not producing the M.O-1 can and the contraband article before the court in time. To a pointed question regarding the delay in reaching the contraband article before the court below, the answer of PW-3 was that there was procedural delay and it was for that reason, the article reached the court belatedly. Thus the counsel for the petitioner submitted that the entire investigation is shabby. On the basis of such shabby investigation and insufficient evidence and materials, the petitioner cannot be convicted for the offence as alleged and therefore the judgment of the trial court as well as the lower appellate court are liable to be set aside. 5. Per contra, the learned Public Prosecutor submitted that though PWs 1 and 2 turned hostile, PW-1 has admitted his signature in Ext.P1 scene mahazar. It is also pointed out by the Public Prosecutor that PWs-3 and 4 have no prior acquaintance with the revision petitioner and there is no reason for implicating the petitioner in the crime CRRP 508/2000 ## **-:6:-** unnecessarily. Thus he supported the finding of the courts below. 6. I have gone through the judgments of both the trial court as well as the lower appellate court and also perused the documentary evidence and also the oral testimony of the prosecution witnesses. The specific case of the prosecution is that on 10-2-96 at 1.15 p.m., PWs 3 and 4 were on patrol duty, found the revision petitioner/accused in possession of 10 litres of arrack and accordingly, the accused was arrested and the materials were seized. Admittedly, there is no seizure mahazar or there is no search list. It has to be noted that the only independent witnesses cited by the prosecution, PWs 1 and 2, were turned hostile. They did not support the prosecution case regarding seizure etc. The learned Public Prosecutor submitted that though PW-1 turned hostile , he had admitted his signature in Ext.P1 scene mahazar. But in fact, there is no seizure mahazar and there is no documentary evidence to substantiate the allegation of the prosecution that they have seized the CRRP 508/2000 ## **-:7:-** contraband article from the possession of the revision petitioner/accused. Of course, evidence of PWs 3 and 4, if it is otherwise acceptable, can be acted upon. But in the absence of any documents to show the seizure, the petitioner cannot be found guilty simply on the basis of the version given by PWs 3 and 4. The evidence of PWs 3 and 4 has to be appreciated in the whole background of the entire prosecution. 7. It is pointed out that the counsel appearing for the petitioner that even though the contraband article was seized, as per the prosecution, on 10-2-96, the materials reached in the court only on 19-3-96 and there is delay of more than one month. There is no proper and acceptable explanation for the delay. During the cross examination of PW-3 it is stated that the delay was occurred only because of the procedural delay. There is no evidence to show whether the contraband article was kept during this period under proper custody of the court or whether it was entrusted with any other superior official authority etc. There is no CRRP 508/2000 ## **-:8:-** explanation. In support of the plea for acquittal on the basis of the delay in reaching the contraband article before the trial court, the learned counsel placed reliance upon the decision of this court in **Narayani v. Excise Inspector** ( 2002 (3) KLT 725) wherein it was held: “In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13-9-98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW-4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out” In the present case, it is also clear that neither PW-3 nor PW-4 has any idea about the contraband article after its seizure and before it produced in the court on 19-3-96. PWs 3 and 4 miserably failed to show whether the article was with any superior officer or within the custody of the excise officials etc. Therefore according to the counsel, CRRP 508/2000 ## **-:9:-** the unexplained delay in reaching the contraband article before the court is sufficient to set aside the judgments of the courts below and for acquittal of the revision petitioner. 8. In the light of the above facts and circumstances, it can be seen that regarding the seizure, there is no proper documentary or oral evidence supported from independent sources. It has also come out in evidence that there is no proper explanation for the delay of more than one month in reaching the contraband article before the court below. It is also relevant to note that there is no explanation for the prosecution witnesses regarding the proper custody of the materials after its seizure on the alleged date of 10-2-96 till it reached before the court on 19-3-96. 9. In the result, I am of the view that the prosecution is miserably failed to establish the case against the petitioner beyond doubt and the finding arrived thereon by the court below is liable to be set aside, especially, in the absence of cogent explanation from the side of the prosecution CRRP 508/2000 ## **-:10:-** witnesses for its non production before the court without delay and also for no explanation regarding the proper custody of the contraband article. Thus the prosecution allegations are not proved beyond doubt and the entire prosecution case rendered as doubtful. Thus, the judgments of the courts below are set aside and the accused is acquitted of the offences levelled against him and bail bond, if any, executed by him, stands cancelled. The Crl.R.P. is accordingly, allowed. ## **V.K.MOHANAN, JUDGE.** kvm/- CRRP 508/2000 ## **-:11:-** V.K.MOHANAN, J. CRL.R.P. No508 OF 2000 Order Dated: 19-2--2008