Vinod v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934 CRL.A.No. 838 of 2005 (F ) ------------------------SC.562/2004 of ADDL.DISTRICT & SESSIONS FAST TRACK (ADHOC II), KOZHIKODE APPELLANT:2ND ACCUSED: ------------------------ VINOD, S/O.KUNHIRAMAN, KAYALULLAPARAMBATH HOUSE, VILLIAPPALLY AMSOM MAYYANNUR DESOM, VATAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.MOHANAN V.T.K. RESPONDENT:COMPLAINANT: -------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.838 of 2005** ## **---------------------------------------------Dated this the 01[st] day of November, 2012** ## **JUDGMENT** The second accused in S.C.No.562 of 2004 of the court of the Additional District & Sessions Judge Fast Track (Ad hoc-II), Kozhikode is the appellant herein, since he is aggrieved by the judgment dated 19/03/2005 in the above Sessions Case by which the learned Judge convicted him for the offence punishable under Section 55(a) of Abkari Act. 2. The prosecution case is that on 21/02/2004 at about 9.30 p.m. the accused two in numbers were found, in possession of 23 bottles of Indian made foreign liquor of 180 ml. each brought from Mahe for the purpose of sale, on the eastern road margin of the public road situated on the western side of the Chalil House near to the Kuttichathan Temple, Choolaparambath, Ayanikkat amsom, desom, Koyilandy Taluk. Thus, according to the Crl.A.No.838/2005 : 2 : police, the accused has committed the offence punishable under Section 55(a) of Abkari Act and Rule 9 of Foreign Liquor Rules and on the basis of the above allegation Crime No.66 of 2004 was registered in the Payyoli Police Station. On the basis of the above allegation and on the police report, S.C.No.562 of 2004 was instituted and when the accused appeared after hearing the prosecution as well as the defence, a formal charge was framed against them for the offence punishable under Section 55 (a) of Abkari Act and Rule 9 of Foreign Liquor Rules. When the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence consisting of the oral testimony of PWs.1 to 4 and the documents namely Exts.P1 to P9. Mos.1 and 2 were identified and marked as material objects. No evidence either oral or documentary was adduced from the side of the defence. The trial court finally found that there is cogent, convincing and reliable evidence to connect both Crl.A.No.838/2005 : 3 : the accused in the alleged crime. Accordingly they were found guilty for the offence punishable under Section 55 (a) of Abkari Act and Rule 9 of Foreign Liquor Rules and thus they were convicted thereunder. On such conviction both the accused including the appellant herein are sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rupees One lakh each and in default of payment of fine each of them is further directed to undergo simple imprisonment for one month under Section 55(a) of Abkari Act. No separate sentence was awarded under Rule 9 of the Foreign Liquor Rules. Set off was allowed. It is the above finding, order of conviction and sentence that are challenged by the second accused in the above Sessions Case in this appeal. 3. I have heard Sri.Mohanan.V.T.K., counsel for the appellant and Smt.S.Hyma, learned Public Prosecutor for the State. Crl.A.No.838/2005 : 4 : 4. The crux of the prosecution allegation is that, in pursuance of the information received by PW.1, that the accused are involved in the sales of Indian made foreign liquor, PWs.1 and 2 and party reached at the spot and found that A1 and A2 were engaged in the sales of Indian made foreign liquor. Accordingly, Mos.1 and 2 were seized and thus the accused have committed offence charged against them. In order to prove the above allegation, the prosecution mainly depends upon the evidence of PW.1 who is the detecting officer. PW.1 was the then Sub Inspector of Police attached to Payyoli Police Station. When he was examined, he was deposed in terms of the prosecution allegation. According to him, on getting information as I mentioned earlier, himself and party reached near the premises of Choolaparambath Kuttichathan temple and at that time the temple festival was going on and he had seen both the accused selling Indian made foreign liquor from an empty cement gunny bag. According to him both the accused were arrested as Crl.A.No.838/2005 : 5 : per Ext.P2 arrest memo. Exts.P3 and P4 are the inspection memos with respect to A1 and A2. PW.1 has stated that he had prepared Ext.P1 seizure mahazar under which the contraband articles were seized and samples were drawn. According to him, after the arrest of the accused and seizure of the contraband articles, himself and party arrived at the Police Station and registered Ext.P5 F.I.R. in Crime No.66 of 2004 of Payyoli Police Station for the said offence. It is also the claim of PW.1 that the accused were produced before the court as per Ext.P6 Remand Report. PW.1 has also stated that the contraband articles were sent to the court as per Ext.P7 property list dated 27/02/2004. He had claimed that the samples were sent for chemical examination report from the court and thus received the chemical analysis report which is marked as Ext.P8. PW.2 is the A.S.I. attached to the same Police Station who accompanied PW.1 at the time of the detection of the crime. When he was examined, he had also deposed in terms of deposition of Crl.A.No.838/2005 : 6 : PW.1. PW.3 is an independent witness, but he turned hostile. PW.4 the then S.I. of Meppayyur Police Station is the officer who undertook the investigation in the present case. According to him, he had prepared Ext.P9 scene mahazar and he had further stated that he had questioned the witnesses and recorded their statements. These are the evidences and materials referred to by the learned Judge of the trial court in support of his finding and convicting the appellant. 5. The learned counsel for the appellant submitted that the trial court is incorrect in its finding and convicting the appellant since the prosecution has failed to prove its case against the appellant/accused beyond reasonable doubt. According to the counsel, though there were thousands of people present at the place of occurrence, none of such persons was questioned, cited and examined by the prosecution to prove its case. The sole independent witness, namely, PW.3, who was examined, turned hostile and as such there is no evidence Crl.A.No.838/2005 : 7 : to corroborate the evidence of the official witnesses PWs.1, 2 and 4. It is also the contention of the counsel that, though the contraband articles alleged to have been seized on 21/02/2004, the same were produced before the court only on 27/02/2004 and there was delay of six days which is not properly explained by the prosecution. Thus, according to the counsel, the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt and therefore he is entitled to get acquittal. 6. The learned Public Prosecutor Smt.S.Hyma submitted that the evidence of PWs.1, 2 and 4 shows that the accused are arrested with the contraband articles and the evidence of those official witnesses are supported by contemporary documents like Exts.P1 to P4 and therefore according to the learned Public Prosecutor, even though there is no independent witness, the prosecution case is not shaken. According to the learned Public Prosecutor, even though there was six days delay, the same was Crl.A.No.838/2005 : 8 : explained by PW.1, stating that he was engaged in law and order duty. Therefore, according to the learned Public prosecutor, finding of the court below is absolutely correct and legal and no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have also gone through the judgment of the trial court and evidence and materials on record. In the light of the above arguments, the question to be considered is whether the trial court is justified in its finding and convicting the appellant. 8. The specific allegation against the appellant and the other accused is that they have found selling Indian made foreign liquor. A learned Judge of this Court in a recent decision in **Narayanan Nair** vs. **State of Kerala** [2011(3)KLT 722] has held that, to prove an offence under S.55(a) read with R.9 prosecution must prove that accused “brought” IMFL into State of Kerala, from some place which lies outside the State. Crl.A.No.838/2005 : 9 : 9. Let me examine whether the evidences of prosecution adduced in the present case are sufficient to attract the offence under Section 55(a) of Abkari Act particularly in the light of the dictum laid in the aforesaid decision. Before considering the evidence of prosecution, it is beneficial to consider the charge framed by the court below against the accused which read as follows:- “I, P.S.Vasu, B.Sc., LL.B., Addl. District & Sessions Judge, Kozhikode hereby charge you accused: |**_1. Gafoor, S/o.Kuhali,_**|**_2. Vinodh, S/o.Kunhiraman,_**| |---|---| |Vallil House,|Kayalulla Parambath House,| |Villiappally amsom,|Villiappally amsom,| |Mayyannur desom.|Mayyannur desom.| as follows:- That you accused on 21-2-2004 at about 21.30 hours both accused A1 Gafoor and A2 Vinodh were found selling Indian made foreign liquor of 23 bottles of 180 ml. each without any valid documents on the eastern road margin of the public road situated on the western side of the Cheelapparambath Kuttichathan Temple, Ayanikkad amsom, Koyilandy Taluk. Thus you have committed the offence punishable u/s.55(a) of Abkari Act and Crl.A.No.838/2005 : 10 : Rule 9 of F.L.R. and I hereby direct you be tried before this court on the said charge.” In the said charge there is no allegation that the accused has brought or transported Indian made foreign liquor from outside the State of Kerala. Considering the evidence of prosecution including the deposition of PW.1 and the documents Ext.P1 and Ext.P5-F.I.R., it can be seen that the prosecution allegation is not specific to the effect that the accused transported or brought Indian made foreign liquor from outside the State. It is true that there was no sticker of the ‘Kerala State Beverages Corporation’ on the bottles alleged to have been seized from the possession of the accused. Though PW.1 has stated that, it was brought from Mahe, no supporting evidence is produced. There is no claim for PW.1 that the contraband articles were brought from any particular place outside the State of Kerala. Neither PW.1, the officer who detected the crime nor PW.4, the officer who has undertaken the investigation, has taken any positive Crl.A.No.838/2005 : 11 : steps towards the investigation to find out the source of these contraband articles or from where the accused purchased and brought the same. Hence there is no positive allegation and evidence in terms of Section 55(a) of Abkari Act. 10. It is also relevant to note that, though PW.1 has claimed that these articles were seized on 21/02/2004, his claim is not supported by any independent evidence. It is true that the prosecution has examined PW.3 independent witness, to prove the incident. But he turned hostile. It is pertinent to note that the place of occurrence is admittedly near to a temple where temple festival was going on. Still then, the prosecution has not examined any person who attended the festival. PW.4 has also deposed that, though he had prepared Ext.P9 scene mahazar, he has not questioned any person residing in the adjacent to the place of occurrence. According to me, the absence of independent evidence will go against the prosecution in view of the particular Crl.A.No.838/2005 : 12 : facts and circumstances involved in the case. It is brought out on record that the jeep in which PWs.1 and 2 arrived in the spot was stopped away from the place of occurrence. PW.1 has also admitted that the accused were seen 5 to 6 metres away from the jeep while it was stopped. If that be so, according to me, in the absence of any independent evidence, the evidence of PW.1 cannot be accepted since the temple festival was going on at the place of occurrence. The sole independent witness examined here had stated that he had seen the accused sitting in the jeep and he had not witnessed any incident prior to that. Thus, according to me, the prosecution has miserably failed to show that the accused was found in possession of the contraband article and engaged in sales of IMFL. 11. Another important defect in the prosecution case is that, there is a delay of six days in producing contraband articles and samples before the court. Ext.P7 property list is dated 27/02/2004 and as per the entries Crl.A.No.838/2005 : 13 : made therein it appears that the court received the properties on 27/02/2004 itself. But according to PW.1 and prosecution the offence was detected on 21/02/2004 and the contraband articles were seized then and there. There is no convincing evidence as to who was in charge of the contraband articles and whether the contraband articles were kept in safe custody so as to rule out any possibility for tampering with the same. The only explanation given by PW.1 is that he was on law and order duty. According to me, the above vague explanation of PW.1 is not sufficient to condone the inordinate delay of six days that occurred in producing the contraband articles. A Division Bench of this Court in the decision reported in **Ravi** vs. **State of Kerala** [2011 (3)KLT 353] has held that, the Prosecution has got a duty to prove that it was the sample taken from the contraband liquor seized from accused that had reached the hands of Chemical Examiner in a fool proof condition. On examination of the facts and circumstances involved Crl.A.No.838/2005 : 14 : in the case especially in the light of the evidence referred to above, according to me, the prosecution has miserably failed to prove that contraband articles alleged to have been seized from the accused reached the court safely and the samples examined by the chemical analyst representing the contraband artilces seized from the accused. Therefore, the delay occurred in the present case, which is not properly explained, goes against the prosecution case. 12. The resultant conclusion of the above discussion especially in the light of the evidence and materials referred to above is that the prosecution has miserably failed to prove its allegation against the accused beyond reasonable doubt. Therefore, I am unable to sustain the conviction recorded by the trial court against the accused including the appellant and accordingly the same is set aside. In the result, this appeal is allowed setting aside the judgment dated 19/03/2005 in S.C.No.562 of Crl.A.No.838/2005 : 15 : 2004 of the court of the Additional District & Sessions Judge Fast Track (Ad hoc-II), Kozhikode and the appellant is acquitted of all the charges leveled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty. The appeal is allowed accordingly. **V.K.MOHANAN, JUDGE** skj