Sulochana W/o Nellikkodan Damodharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** ## **CRL.A NO. 900 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 325/2006 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC-I), MANJERI, MALAPPURAM** ## **APPELLANT/ACCUSED NO.1:** SULOCHANA W/O. NELLIKKODAN DAMODHARAN, VAZHIKKADAVU, MARUTHA, NILAMBUR, MALAPPURAM DISTRICT. BY ADV BABU S. NAIR ## **RESPONDENT/STATE:** STATE OF KERALA REP. BY THE EXCISE INSPECTOR, NILAMBUR, EXCISE RANGE-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV SRI. M.C. ASHI (P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.900 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.900 of 2007** --------------------------------------Dated this the 9[th] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 21-05-2007, passed by the learned Additional Sessions Judge (Fast Track-I), Manjeri in S.C No.325/2006, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 8(2) of the Abkari Act. 3. The prosecution case is that on 28-01-2005 at about 1.30 p.m, the accused was found in possession of 1 litre of arrack in a plastic bottle at Pulikkal, Vazhikkadavu Amsom, Nilambur. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nilambur. The case was committed to the Sessions Court, Manjeri from where it was made over to the Additional Sessions Court (Fast Track-I), Manjeri. On appearance of the 3 Crl.A No.900 of 2007 accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge levelled against her and therefore, she came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P7 and MO1. 6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and she was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1 Lakh under section 8(2) of the Abkari Act. 7. Heard Sri.Babu.S.Nair, learned counsel appearing for the Crl.A No.900 of 2007 4 appellant/accused and Sri.M.C.Ashi, learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. The case of the prosecution is that on 28-01-2005 at about 1.30 p.m, a lady was found in possession of the contraband substance involved in this case at Pulikkal, Vazhikkadavu Amsom, Nilambur Taluk. PW2, the Excise Preventive Officer, Malappuram Excise Special Squad has given evidence that on 28-01-2005 at about 1.15 p.m the accused was found carrying a plastic bottle. On further Crl.A No.900 of 2007 5 inspection they found that the accused was carrying illicit arrack in the plastic bottle. PW2 seized the contraband substance from the possession of the accused in the presence of the witnesses and collected arrack from the bottle in a 375 ml bottle as sample and sealed the same. 12. PWs 3 and 4, the independent witnesses, did not support the prosecution case. PW1, Junior Superintendent of the court, received the properties produced before the court. PW5 produced the articles before the court. PW6 received the sample from the court and delivered the same to the Chemical Examiner’s laboratory. PW7, the then Excise Inspector, Nilambur, received the contemporaneous documents submitted by PW2 and registered Ext.P6 occurrence report. PW7 conducted investigation and submitted final report. 13. The accused was not arrested from the scene. The detecting officer has given evidence that as the accused was a lady and no woman Excise guard was in the Excise team, she could not be arrested. 14. PW2 has given evidence that he had previous acquaintance 6 Crl.A No.900 of 2007 with the accused. The date of occurrence is 28-01-2005. PW2, the only official witness examined by the prosecution to establish the incident proper, identified the accused on 27-04-2007. 15. The crucial question is the credibility of the evidence of PW2 to the effect that he had seen the accused prior to the incident. Exhibit P3 seizure mahazar, the contemporaneous document evidencing seizure, refers to “a lady who was found carrying a plastic bottle”. PW2 had not narrated any of the identifying features of the accused in Ext.P3 seizure mahazar. If PW2 had previous acquaintance with the accused the same would have found a place in Ext.P3. Moreover PW2 has not given evidence as to the way in which he got acquainted with the accused prior to the incident. 16. In the absence of any evidence regarding the way in which PW2 got previous acquaintance with the accused and further fact that he referred to “a lady carrying a plastic bottle” in Ext.P3, the necessary conclusion is that the statement of PW2 to the effect that, he had previous acquaintance with her is not credible and hence it is not acceptable. Crl.A No.900 of 2007 7 17. The accused was not arrested. PW2 had no opportunity to see the accused after the incident. He has no case that he had seen the accused after the incident. None of the independent witnesses supported the prosecution case. Now the relevant question to be considered is whether the identity of the accused by PW2, the sole witness examined to prove the incident proper, in the court after a long lapse of 2 years is acceptable or not. 18. The law is settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during trial. Where a witness identifies an accused, who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation {vide: _**Kanan and others v. State of Kerala**_ (AIR 1979 SC 1127), _**Jameel v. State of Maharashtra**_ (AIR 2007 SC 971), _**Raja v. State by Inspector of Police**_ (AIR 2020 SC 254), _**State (Delhi Administration) v. V.C.Shukla and another**_ (AIR 1980 SC 1382), _**Mohd.Abdul Hafeez v. State of AP**_ (AIR 1983 SC 367), _**Mohanlal Gangaram Gehani vs State Of**_ Crl.A No.900 of 2007 8 ## _**Maharastra**_ (AIR 1982 SC 839) 19. The resultant conclusion is that the prosecution failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence. 20. Another suspicious circumstance, on the identity of the person who was found with the contraband substance, is that the prosecution suppressed the earliest Occurrence Report (O.R) registered by the detecting officer. PW7 admitted in cross examination that the Excise official who detected the offence, had registered an O.R and he specifically made it clear that said O.R related to identification, and the same was not produced before the court. This also creates a doubt as to the identification of the person, who was found carrying the contraband substance at the scene of occurrence. 21. The prosecution was unable to establish the link connecting the accused with the contraband seized as it failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence. Crl.A No.900 of 2007 9 22. The conviction entered by the court below overlooking the vital aspect relating to identity cannot be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. She is acquitted of the charge. She is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS