Suresh, S/o Appu v. Circle Inspector of Police, Varkala Police Station and State of Kerala, rep. by Public Prosecutor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 08TH DAY OF JULY 2020 / 17TH ASHADHA, 1942** ## **CRL.A.No.965 OF 2005** **AGAINST THE JUDGMENT IN SC 661/2002 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC)-II, THIRUVANANTHAPURAM** ## **APPELLANT/2ND ACCUSED:** **SURESH, S/O APPU, DEVAKI NIVAS, PANDAKASALA, SARKARA, CHIRAYINKEEZH.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 CIRCLE INSPECTOR OF POLICE VARKALA POLICE STATION. 2 STATE KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SR.PP. B. JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2020, THE COURT ON 08-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.965 of 2005 2 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- ## Crl.A.No. 965 of 2005 ------------------------------Dated this the 8[th] day of July, 2020 ## **JUDGMENT** The 2[nd] accused in S.C.No.661/2002 on the file of the Additional Sessions Judge, Fast Track [Adhoc]No.-II, Thiruvananthapuram is the appellant in this case. The Circle Inspector of Varkala, charge sheeted the appellant and three others alleging offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case in brief is that, on 16.02.2000, while PW5 Circle Inspector of Police and his party were on law and order duty, they got reliable information about the unauthorised sale of arrack at TS.No.43 at Njekadu. Based on the information they proceeded to that place and searched the said toddy shop after preparing and sending Ext.P1 search memorandum. In the search, 26 polythene covers each filled with 175ml of arrack were detected from the kitchen. The 3[rd] and 4[th] accused were selling arrack from the toddy shop. The Crl.A.No.965 of 2005 3 police party arrested the 3[rd] and 4[th] accused and seized the arrack and the sale proceeds as per Ext.P2 search list, after collecting samples. The petitioner is implicated as an accused because the prosecution alleged that the petitioner is the licensee of the toddy shop. 3. After investigation, the final report was filed before the Court. The case was committed to the Sessions Court. When the case was pending before the Sessions Court, 1[st] and 3[rd] accused absconded and hence their case was split up. 2[nd] and 4[th] accused faced trial. 4. To substantiate the case, PW1 to PW5 were examined, and Exhibit P1 to P10 are marked on the side of prosecution. The 2[nd] accused was examined as DW1 and he produced Ext.D1 license. 5. After going through the evidence and documents the trial court found that, the 2[nd] and 4[th] accused committed the offence under Section 8(2) of the Abkari Act. They are sentenced to undergo rigorous imprisonment for a period of 4½ (Four and half) years each and to pay a fine of Rs.1,00,000/- (Rupees One Lakh each). In default of payment Crl.A.No.965 of 2005 4 of fine, the accused are directed to undergo simple imprisonment for a further the period of six months each. Aggrieved by the conviction and sentence appellant/2[nd] accused filed the present appeal. 6. Heard the learned counsel for the appellant and the leaned Senior Government Pleader. 7. The counsel for the appellant submitted that, even if the entire prosecution case is accepted, no offence is made out against the 2[nd] accused. He submitted that, the prosecution is not able to prove that the search and seizure of the contraband article are from the toddy shop of the appellant/2[nd] accused. He also submitted that, there is only the interested testimony of the official witnesses in this case. Prosecution witness No.1 even denied his signature in Ext.P1 search list. He is also submitted that, PW5 the Detecting Officer himself investigated this case. 8. The learned Senior Public Prosecutor submitted that, in the light of the oral and documentary evidence, the prosecution is able to prove the offence under Section 8(2) of the Abkari Act. Crl.A.No.965 of 2005 5 9. The point for consideration in this appeal is whether the accused committed offence under Section 8(2) of the Abkari Act. 9. To substantiate the case altogether five witnesses were examined. PWs1 and 2 are the independent witnesses examined by the prosecution. PW1 was declared as hostile. He even denied his signature in Ext.P1 search list. PW2 is the other independent witness examined by the prosecution. PW3 is the Head Constable who accompanied PW5 the Detecting Officer at the time of search and seizure. PW4 is examined to prove Ext.P6. 10. A perusal of Ext.P1 search list will show that PW5 and his party searched house bearing No.OP.V/628. But, when PW5 was examined before the court, he deposed that he searched building No.OP.V/624. It may be because of the evidence of PW4 and Ext.P6 letter from the Secretary of Ottur Grama Panchayat. A perusal of Ext.P6 will show that toddy shop No.43 is situated in building No. OP.V/624. The appellant/2[nd] accused himself gave evidence before the Court and produced Ext.D1 the register of licenses of toddy shop Crl.A.No.965 of 2005 6 No.43. As per Ext.D1 toddy shop No.43 is situated in OP.V/628 of Ottur Grama Panchayat. The prosecution has not explained the discrepancy about the number of the building in Exts.P1 and D1 on one side and Ext.P6 and the deposition of PW5 on the other hand. As per Ext.P1 search list, the search was conducted in OP.V/628 where toddy shop No.43 is functioning. But as per Ext.P6, the toddy shop No.43 is functioning in building No.OP.V/624. PW5 the Detecting Officer also deposed that, he searched building No.OP.V/624 of Ottur Grama Panchayat. 11. The appellant who is the 2[nd] accused is implicated in this case because he is the licensee of the toddy shop. As per Ext.D1, the register of license, his toddy shop is situated in building No.OP.V/628. PW5 the Detecting Officer has no case that, he searched building bearing No. OP.V/628. According, to him he searched OP.V/624, Ottur Grama Panchayat. Admittedly, the appellant/2[nd] accused was not present at the time of search and seizure. The prosecution arrayed him as an accused because he is the licensee of the toddy shop. Prosecution has not produced the license of the appellant/2[nd] Crl.A.No.965 of 2005 7 accused. The appellant/2[nd] accused produced the license as Exhibit D1 which shows that his toddy shop No.43 is functioning in building No. OP.V/628 of Ottur Grama Panchayat. PW5 has no case that the search was conducted in OP.V/628 Ottur Grama Panchayat. In such circumstances, it is difficult to accept the prosecution case that, the petitioner is also responsible for the seizure of contraband article from toddy shop bearing No.43, which according to the prosecution is functioning in OP.V/624 whereas it is actually functioning in building No.OP. V/628. 12. Moreover, in this case, PW5 the Detecting Officer himself investigated the case. Normally it will not affect the prosecution case unless prejudice is shown. In this case the building in which the search and seizure was conducted itself is doubtful. The building number is wrongfully stated in Ext.P1 and Ext.P6, there is no explanation to the prosecution about the same. Moreover, PW1 one of the independent witnesses even denied his signature in Ext.P1 search list. Hence the dictum laid down by the apex court in **Mohan Lal v. State of Punjab [2018 (3) KLT 852]** is applicable. The relevant portion Crl.A.No.965 of 2005 8 ## of the judgment in **Mohan Lal’s case (supra)** is extracted hereunder: _“25. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the court in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigation must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a revers burden of proof.”_ It is true that in **Mohn Lal’s case** was clarified by the apex court in **Varinder Kumar Vs. State of Himachal Pradesh [2019(1) KHC 828]** . But in the light of the facts and circumstances of this case, I think the principle in Mohan Lal’s case also can be considered in this case. In the light of the discussions mentioned above, I think the accused is entitled the benefit of doubt. Crl.A.No.965 of 2005 9 Hence this criminal appeal is allowed. The conviction and sentence imposed on the appellant/2[nd] accused (Suresh, S/o Appu, Devaki Nivas, Pandakasala, Sarkara, Chirayinkeezh) as per judgment dated 30.05.2005 in S.C.No.661/2002 of the Additional Sessions Judge, Fast Track [Adhoc] No.II, Thiruvananthapuram, is set aside. The appellant/2[nd] accused is set at liberty. Bail bond, if any, executed by the appellant/2nd accused, is cancelled. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** VPK