IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MRS. JUSTICE K.HEMA
FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932
CRL.A.No. 1156 of 2004(B) ------------------------SC.473/2002 of ADDL. SESSIONS COURT (fast track - I), TRIVANDRUM ....................
APPELLANT(S): ACCUSED
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UNNIKRISHNAN @ MANIKUTTAN, S/O.KESAVAN NAIR, LALITHA BHAVAN, SRICHITHRA NAGAR, PANGODU WARD, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM TALUK.
BY ADV. SRI.G.SUDHEER
RESPONDENT(S):
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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI.P.A.SALIM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K.HEMA, J.**
## **---------------------------------------------Crl.Appeal No.1156 of 2004 ---------------------------------------------Dated 14[th] January, 2011.**
## **J U D G M E N T**
This appeal arises from the conviction and sentence passed against appellant under Section 55(a) of the Kerala Abkari Act to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months.
2. According to prosecution, on 31.12.2000 at about 2.15 p.m., accused was found in possession of transporting 3.570 litres of Indian Made Foreign Liquor in five bottles, which can be used only for defence service and canteen service. The article was being transported in a motor cycle ridden by appellant and he was apprehended on the northern side of EdapazhanjiThirumala road in front of Pangode Kavil Sree Bhavathy Temple.
3. To prove prosecution case, PW1 to PW4 were examined and Exts.P1 to P5 and MO1 series to MO4 series were marked. The accused took up a contention that this case is absolutely a false one. According to him, he was proceeding to the bank on a motor cycle from his house at Pangode, between 9.40 and 9.45 a.m. on the date of occurrence. In front of
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Edapazhanji market, Excise officials showed signal and his body was searched. He was asked to where he was taking the money. When he explained that he was going to the bank to deposit the amount towards a loan, he was asked to go to the Excise office in connection with the investigation of a case. He told them that he can come on Monday and that it was not possible to come on the same day. On this, there was a quarrel. The Excise officials took appellant and his bike to the Excise office and a case was registered against him. The articles produced before the court do not belong to him and he has no connection with the liquor produced in this case, it is submitted.
4. The trial court, on an analysis of the evidence in detail held that accused possessed 3.75 litres of Indian Made Foreign Liquor, as against the permissible quantity of 1.5 litres as on the date of occurrence. It was also held that he had no right to possess even 1.5 litres of Indian Made Foreign Liquor which can be used exclusively for defence personnel including ex-service men. Therefore, prosecution proved that the accused committed offence under Section 55(a) of the Act, for unauthorised and illegal possession of MO1 series. The above findings are
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challenged in this appeal.
5. Heard both sides. Perused records. Learned counsel for appellant argued that there is inordinate delay in producing the material objects before the court and hence, the possibility of tampering with the material objects cannot be ruled out. The incident took place on 31.12.2000, but the material objects were produced before the court admittedly only on 4.1.2001. There is no evidence to show in whose custody the articles were kept between these dates. Therefore, in the light of the decision reported in **Rajendran v. State of Kerala** (2007(1) KLT 971), appellant is entitled for acquittal, it is argued.
6. On hearing both sides and in the light of the specific defence that this is a falsely foisted case and that nothing was seized from the possession of accused on the date of occurrence, but the articles produced in court were subsequently procured etc., I find that the contentions raised deserves a more serious consideration. Though accused was arrested on 31.12.2000 and he was produced in court on the next day, on 1.1.2001, it is relevant to note that the material objects were not produced by the Excise officials while producing the accused before the court.
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7. The contraband articles were not produced along with the accused on the same day. The Investigating Officer (PW4) was questioned about the non-production of the articles. He gave evidence that PW1, Detecting Officer told him that the articles were produced on the same day, on 1.1.2001, but he was convinced from the records that the articles were produced only on 4.1.2001. He has not enquired about the delay or correctness of the version given by PW1 to him. A suggestion was made that he has not made a proper investigation in this case.
8. PW1 is the Excise Range Inspector. In the cross examination, he admitted that the MOs. were seen produced in court only on 4.1.2001 and a suggestion was made that the articles were not seized from the accused and that is why those articles were not produced along with the accused. He was questioned regarding absence of label, seal etc. on MO1 series which are the bottles of liquor, which were seized in this case. There was no proper explanation for the discrepancies.
9. There is also no evidence to show why the articles were produced only on 4.1.2001 and in whose custody, those articles were kept till those were produced in court. In the absence of
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evidence regarding these details, tampering cannot be ruled out, as held in the decision cited by appellant's counsel. In this connection, it is relevant to note that as per the evidence and mahazar, the articles seized in this case were 5 bottles having capacity of 750 ml. and the total quantity of liquor seized in this case is 3.750 litres. PW1, the Excise Range Inspector gave evidence that out of the 5 bottles, 2 bottles were opened and those were taken as samples. PW4, the Investigating Officer stated that the report received after examination of the sample is Ext.P5.
10. If the evidence on PW1 read with Ext.P1 mahazar is accepted, the samples must have 750 ml. of liquor. But, a perusal of Ext.P5 shows that two sealed bottles each containing 200 ml. of liquor was received in this case. The difference in the quantity of liquor taken as sample and the quantity of liquor in the sample boxes analysed by Chemical Analyst is not explained in this case. In the above circumstances, the contention taken by the defence assumes greater significance.
11. The delay in producing the articles before the court, absence of evidence regarding in whose custody the
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articles were kept etc. gains greater dimensions. At any rate, in the absence of any probable and plausible explanation from the side of the prosecution for the discrepancy regarding quantity of liquor seized as sample and those examined by the Chemical Analyst (750 ml. as against 200 ml.), I cannot brush aside the contentions taken up by the defence that there is chances of tampering with the articles, if any seized. The case set up by accused that no articles were seized at all, but subsequently some articles were produced in court also cannot be brush aside likely.
12. The trial court has not considered the above relevant aspects, but in a superficial manner, the discrepancies pointed out were considered and the contention was rejected. The prosecution failed to establish that the articles examined as per Ext.P5 were those seized from possession of appellant. Hence, the conviction and sentence passed against appellant are liable to be set aside. The order passed by the trial court to confiscate MO4 series currency notes is also liable to be set aside and I do so. MO4 series shall be returned to appellant.
13. In the result, the following order is passed :
(i) The conviction and sentence passed against the
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appellant under Section 55(a) of the Kerala Abkari Act are set aside.
- (ii) The appellant is found not guilty and he is acquitted of offence under Section 55(a) of the Abkari Act.
- (iii) The appellant is set at liberty forthwith.
- (iv) The appellant shall be released from custody, if his detention is not required in any other case.
- (v) The Registry shall issue release order forthwith.
- (vi) MO4 series shall be released by trial court to appellant. This appeal is allowed.
**K.HEMA, JUDGE.**
**tgs**
