VIJU @ VIJAYAN, S/O NANU v. STATE-EXCISE INSPECTOR, KALPETTA EXCISE RANGE

**“CR”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943** **CRL.A NO. 2966 OF 2008** **AGAINST THE JUDGMENT DATED 02.12.2008 IN SC 13/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED NO.2:** **VIJU @ VIJAYAN, S/O. NANU, VADAKKECHERUVIL VEEDU, MUNDAKAI, VELLARIMALA, WAYANAD DISTRICT.** **BY ADV SMT.CELINE JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE-EXCISE INSPECTOR, KALPETTA EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO.2966 OF 2008** 2 ## **“CR”** ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.2966 of 2008** **------------------------------------** Dated this the 12[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 02.12.2008, passed by the Additional Sessions Judge-II, Kalpetta, in SC.No.13/2006. 2. By the impugned judgment, the appellant (accused No.2) was convicted of the offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that, on 10.11.2003 at about 04.00 P.m., the appellant and the other accused were found transporting 250kg of Jaggery, 1½kg of Navasaram and 200grams of Tatiripoovu through the Chooramal-Kappikadu estate road for the purpose of distilling arrack. On 17.11.2003, based on the confession given by the appellant, the Excise Inspector, Kalpetta (PW1) recovered wash and other utensils from a nearby **CRL.A NO.2966 OF 2008** 3 rocky area. 4. After completion of the investigation, the final report was submitted against the appellant, and the other accused (A1 and A3) for the offence punishable under Section 55(g) of the Abkari Act before the Chief Judicial Magistrate Court, Kalpetta. 5. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 55(g) of the Abkari Act. The charge against accused No.3 abated on his death during the trial. The appellant and accused No.1 faced trial. They pleaded not guilty, and therefore, they came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs.1 to 7, Exts.P1 to P14, and MOs.1 to 10. 7. After the closure of the evidence on behalf of **CRL.A NO.2966 OF 2008** **==> picture [7 x 9] intentionally omitted <==** the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They 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 they were called upon to enter on their defence and to adduce any evidence, they may have in support thereof. The trial court, after hearing the arguments addressed on both sides, found that the appellant is guilty of the offence under Section 55(g) of the Abkari Act and he was convicted thereunder. Accused No.1 was acquitted of the charge. The appellant/accused No.2 was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 8. Heard Smt.Celine Joseph, the learned counsel appearing for the appellant, and Sri.M.C.Ashi, the learned Public Prosecutor, appearing for the respondent. 9. The learned counsel for the appellant/accused contended that the prosecution failed to establish the charge against the accused. **CRL.A NO.2966 OF 2008** 5 10. Per contra, the learned Public Prosecutor submitted that the prosecution could establish the charge against the accused. 11. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. 12. PW1, the Excise Inspector, Kalpetta Range, on 10.11.2003 at 04.00 p.m., inspected a jeep bearing registration No.KL10D/7610 at Chooralmala. The appellant and the other accused were found in the jeep. On inspection, PW1 found that 250kg of Jaggery in 5 gunny bags, 1½kg of Ammonium Chloride, and 200 grams of Tatiripoovu were stored in the jeep. PW1 gave evidence that the accused confessed that those articles were transported for the purpose of distilling arrack, and hence he seized those articles as per Ext.P5 seizure mahazar. PW1 also searched the residence of accused No.3 as per Ext.P4 search list, but no incriminating materials were recovered. PW1 gave evidence that the accused had **CRL.A NO.2966 OF 2008** **==> picture [7 x 9] intentionally omitted <==** confessed to him that they had concealed wash in a rocky area in the forest land, approximately one kilometer away from the residence of accused No.3, on the bank of Aranapuzha. PW1 arrested all the accused and produced them before the Magistrate concerned. PW1 subsequently filed an application seeking custody of the appellant and recovered wash, and other utensils (MOs.3 to 9) kept for the purpose of distilling arrack from the rocky area on the bank of Aranapuzha. PW2, the Excise Guard who had accompanied PW1 in the search conducted in the jeep, supported the prosecution case that Jaggery, Ammonium Chloride, and Tatiripoovu were seized from the possession of the accused. PW3, another Excise official who had accompanied PW1 in the recovery effected on 17.11.2003, also supported the case of the prosecution. PWs.4 to 6, the independent witnesses, did not support the prosecution. PW7 conducted the investigation and submitted the final report. 13. The prosecution alleges that the appellant, **CRL.A NO.2966 OF 2008** 7 along with the other accused was found in possession of Jaggery, Ammonium Chloride, Tatiripoovu and wash. Recovery of the contraband substances was effected in two parts. 14. The first part of the recovery was made on 10.11.2003. As per Ext.P5 mahazar 250 kg of Jaggery, 1½ kg of Navasaram and 200 grams of Tatiripoovu were recovered from the vehicle in possession of the appellant and the other accused on 10.11.2003. 15. The second part of the recovery was effected on 17.11.2003, allegedly based on the confession given by the appellant. PW1 obtained the custody of the appellant from the court and he was taken to the rocky area on the bank of Arananpuzha near the residence of accused No.3 and recovered MOs.3 to 9. 16. The prosecution is relying on the confession allegedly given by the appellant and the subsequent recovery of MOs.3 to 9 to establish the charge against him. **CRL.A NO.2966 OF 2008** 8 17. It is settled that the confession made to an Abkari officer, after the amendment of Section 50 of the Abkari Act, will be deemed to be a confession made to a Police officer within the meaning of Section 25 of the Evidence Act. (see: **Joseph v. State of Kerala** [2009 (4) KHC 537], **Sidhan v. State of Kerala** [2014 (2) KHC 644]). 18. The appellant faces a charge under Section 55(g) of the Abkari Act. Section 55(g) reads thus: “55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act ….............. .......................................... (g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; ….................... shall, be punishable _(1)_ for any offence, other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh, and............” (Emphasis supplied) 19. In order to attract the offence under Section 55(g) of the Abkari Act, the prosecution has to establish that the accused possessed the articles, allegedly recovered, for the purpose of manufacturing liquor. 20. As per the case of the prosecution on **CRL.A NO.2966 OF 2008** 9 10.11.2003, PW1 recovered 250 kg of Jaggery, 1½ kg of Navasaram, and 200 grams of Tatiripoovu from the possession of the appellant. These articles can be used for the purpose of manufacturing liquor. It is admitted that these articles are also capable of many other methods of legal user. What is to be established by the prosecution to attract the offence alleged against the appellant is that he possessed the same “for the purpose of manufacturing liquor”. The prosecution relied on the alleged confession made by the appellant and the other accused to the effect that they had collected these articles for the purpose of distilling illicit arrack. The above-referred confession is nothing short of an acknowledgment of guilt which comes under the definition of Section 25 of the Evidence Act. So, the confession allegedly made by the appellant and other accused, to the effect that they had possessed the articles for the purpose of manufacturing illicit arrack, to PW1 will stand interdicted by the said Section. Hence, the **CRL.A NO.2966 OF 2008** 10 confession made by the appellant to PW1 cannot be relied on as an incriminating piece of evidence. As far as the recovery effected on 10.11.2003 is concerned, now what survives is the possession of jaggery, Ammonium Chloride and Tatiripoovu. Those articles are admittedly capable of many other legal user, and the mere possession of those articles in the absence of any other convincing evidence to show that the appellant had the intention to manufacture illicit arrack will not bring home the offence under section 55(g) of the Abkari Act. While dealing with a similar fact situation, this Court in **Santhosh v. State of Kerala** [2007 (2) KLT 636] held that transportation of Jaggery and Karinjapatta and possession of the same by itself would not amount to an offence under Section 55(g) in the absence of materials to show that such possession was for the purpose of manufacturing liquor. The resultant conclusion is that on the allegation that the appellant had possessed Jaggery, Ammonium Chloride and Tatiripoovu on 10.11.2003 as **CRL.A NO.2966 OF 2008** 11 pleaded by the prosecution, no offence under Section 55(g) will sustain. 21. Now, coming to the second part of the recovery, the detecting officer (PW1) would depose that on 17.11.2003 based on the confession given by the appellant, he was taken to a rocky area on the bank of Aranapuzha and recovered MOs.3 to 9. PW1 gave evidence that the appellant, while in custody, made a confession on 10.11.2003, and based on that confession wash and other utensils were recovered. The above said statement of the detecting officer can be proved in terms of Section 27 of the Evidence Act. 22. In the instant case, though PW1 referred to a confession given by the appellant, there is nothing to show that he recorded the alleged confession. In Ext.P5 seizure mahazar there is a narration that the three accused confessed that they had concealed wash in the rocky area on the bank of Aranapuzha approximately 1 ½ km away from the residence of accused No.3. At the time **CRL.A NO.2966 OF 2008** 12 of evidence, the alleged confession was not sought to be proved through the detecting officer or through any of the witnesses. 23. It is trite that statements made by an accused, which may be provable under Section 27, Evidence Act, should be clearly and carefully recorded by the Police officer concerned. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. They should not be paraphrased. If what a person says is to be used in evidence, his own words should be used. Evidence given by a witness of what another (the accused) said is basically weak. There is a possibility that the words may be imperfect; there is another possibility of imperfect memory. The narration of the exact word used may go different. In these circumstances, the confession statement recorded in the 'first person' becomes highly relevant. 24. In **Mujeeb and another v. State of Kerala** [AIR 2000 SC 591] the Apex Court, while considering a fact **CRL.A NO.2966 OF 2008** 13 situation wherein the Investigating Officer failed to record the statement of the accused in the actual words in verbatim leading to recovery, held that such a statement by the accused could not be treated as a statement of the accused leading to recovery. In **Mohd. Abdul Hafeez v. State of A.P.** [1983 Crl.L.J. 689 (SC)] the Apex Court held that while dealing with more than one accused, it is obligatory upon the Investigating Officer to state and record who gave the information and what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. In view of the above settled legal position, the evidence of PW1 hardly provides any incriminating evidence against the accused. 25. The alleged recovery was effected from an open place. The prosecution failed to establish the authorship of the concealment of the contraband substance by the appellant. The place from where the articles were **CRL.A NO.2966 OF 2008** 14 allegedly recovered was accessible to others or ordinarily visible to others. The place from which the wash and other utensils were seized has not been proved to be under the ownership of or within the control of the appellant. No convincing evidence was adduced by the prosecution to establish that the appellant had knowledge of conscious possession of the contraband recovered. In **Khudeswar Dutta v. State of Assam** [AIR 1998 SC 1736], the Apex Court held that the mere knowledge of the accused that incriminating articles were kept at a certain place does not amount to conscious possession. The inevitable conclusion is that the concealment of wash and other utensils in the rocky area on the bank of Aranapuzha cannot be used against the appellant. 26. This Court resultantly comes to the conclusion that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. 27. The conviction entered by the Court below **CRL.A NO.2966 OF 2008** **==> picture [13 x 9] intentionally omitted <==** overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused No.2 is therefore not guilty of the offence punishable under Section 55(g) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS