Viswanathan s/o Elayasseri Kesavan Vazhikkadav u AMSOM, Marutha Desom, Residing at School Kunnu v. State of Kerala through the Excise Inspector, Nilambur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937** **CRL.A.No. 94 of 2006 ( )** **------------------------AGAINST THE JUDGMENT IN SC 296/2004 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI DATED 23.12.2005** **AGAINST THE ORDER IN CP 42/2004 of JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR** **APPELLANT/ACCUSED:** **------------------** **VISWANATHAN S/o.ELAYASSERI KESAVAN VAZHIKKADAVU AMSOM, MARUTHA DESOM, RESIDING AT SCHOOL KUNNU.** **BY ADV. SRI.SUNNY MATHEW** **RESPONDENT/COMPLAINANT:** **----------------------** **STATE OF KERALA THROUGH the EXCISE INSPECTOR, NILAMBUR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR: SMT.BINDU GOPINATH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2015, THE COURT ON 19.01.2016 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ================= **Crl.A.No.94 of 2006** ================= Dated this the 19[th] day of January, 2016 ## **JUDGMENT** The sole accused who stands convicted for offence punishable under Section 8(1) of the Kerala Abkari Act is the appellant herein. 2. The prosecution case is that when the Excise Inspector of Nilambur range and party were on a regular patrol duty, on 27.01.2003 at about 5 p.m, they came across the accused who was found proceeding from an estate to the road carrying a can. He was intercepted and contents of the can were smelled and tasted. It was found to be arrack. After the process of sampling, sealing and preparation of contemporaneous documents, he was arrested and crime was registered. After investigation, final report was laid and he faced the trial before the court below. Learned Sessions Judge, on an evaluation of the oral testimony of PWs.1 to 5, Exts.P1 to P8 marked and MO.1 which was identified, concluded that the prosecution had succeeded in proving the guilt of the accused. He was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-. Aggrieved by the Crl.A.94/06 2 conviction, appellant has preferred this appeal. 3. Heard and examined the records. 4. Prosecution is relying on the oral testimony of PWs.1 and 2 who are the Excise Inspector and Preventive Officer of the excise team. Both the witnesses gave evidence supporting the prosecution case. According to them, they were on a regular patrol duty. The accused was found coming from the rubber estate carrying a 10 litre can. He was intercepted and the contents of the can were smelled and tasted. It was found to be arrack. The total quantity was about 7 litres. Sample of 300ml was taken. It was seized and affixed with labels. Accused was arrested. 5. The prosecution tried to derive corroboration from Ext.P1 seizure mahazar, Ext.P2 arrest memo and Ext.P3 arrest notice which were stated to be the contemporaneous documents. That generally tallied with the evidence spoken by PWs.1 and 2 . Ext.P4 was the crime and occurrence report. By Ext.P5 list of property, the contraband and samples were produced in Court. Ext.P6 was a copy of the forwarding note. Ext.P7 is the chemical analysis report which indicates that the sample contained 28.33% Crl.A.94/06 3 volume of Ethyl Alcohol. Exts.P6 and P7 cumulatively indicate that the samples which were produced in Court reached the chemical analysis lab in a sealed condition and the sample, tallied with the seal and was forwarded intact. 6. The defence set up by the accused was that he was absolutely innocent and was sought to be falsely implicated due to previous enmity. The defence relied on the oral testimony of PW3, a person claimed to be an independent witnesses. He admitted that he had signed Ext.P1 seizure mahazar but did not support the prosecution case in any manner. According to him, he had signed at the excise office. He further admitted that the case was set up due to previous enmity with the accused. Relying on this material, it was contended that the defence of the accused stood established even from the evidence of an independent witness of the prosecution. 7. Learned counsel for the accused further contended that there was delay in producing the contraband articles and accused before the Court. Relying on the authorities reported in **Ramankutty v. The Excise Inspector (2013(3) KLJ 434)** , Crl.A.94/06 4 **Sivadasan v. State of Kerala (2007(3) KLJ 328)** it was contended that the substantial delay in production of the document casts serious doubt on the prosecution case. However, it is pertinent to note that Ext.P4 crime and occurrence report and Ext.P5, list of property reached the Court on the same day itself. Hence, it cannot be said that there was any delay in production of the contraband articles in Court. 8. It was further contended that the accused stated that he obtained arrack from the person at Mundapetty. PWs.1 and 2 admitted that they did not conduct any search regarding the source. Evidently, this casts some doubt on the prosecution case, since had that be established, it would have gone a long way in establishing the truth of the prosecution case. 9. It is pertinent to note that PW5, Investigating Officer admitted that he recorded the statement of the witnesses one year and four months after the detection of the crime. When he was confronted regarding the inordinate delay, the only explanation stated was that he had taken charge much later. Evidently, the inordinate delay in recording the statement has not been properly Crl.A.94/06 5 and sufficiently explained. This Court in **Krishnan H v. State (2015(1) KHC 822)** had held that inordinate and unexplained long delay in conducting the investigation was fatal to the prosecution case. 10. It is pertinent to note that PWs.3 and 4 who are claimed to be the independent witnesses turned hostile and did not support the prosecution case in any manner. Both of them admitted signatures and stated that, they signed at the excise office. PW4 went to the extent of deposing that he had signed on the blank paper. In the above circumstance, the prosecution has to rely only on oral testimony of PWs.1 and 2 alone. Though it is settled that the prosecution can sustain its case exclusively on the evidence of oral testimony of the official witnesses, it has to be approached with care and caution and calls for a careful scrutiny. It is pertinent to note that oral testimony of PWs.1 and 2 suffers from certain vital contradictions. It is pertinent to note that in Ext.P1, the official seal of PW1 was affixed. However, in the body of Ext.P1, there was no reference that the official seal of PW1 was affixed on Ext.P1. According to Ext.P1, the accused was seen at a distance of Crl.A.94/06 6 15 meters away by the excise party. However, at the time of oral testimony, PW1 stated that he had seen the accused at a very close range. In Ext.P1, there is no reference as to the point of time when the independent witnesses reached the spot. However, PW2 in his version had stated that the contraband articles were tested in the presence of both independent witnesses. It indirectly indicates that the witnesses had reached the spot almost simultaneous with interception. PW1 in his evidence deposed that the labels were written by CW5. He further stated that the sample was taken and sealing done by PW1 himself. On the other hand, PW2 deposed that the sampling was done by the guard. Further, PW1 in his evidence asserted that the sealing process on MO1 was also done by him. This was contradicted by PW2 stating that the sealing was done by the guard. In other words, on the most important crucial aspects regarding sampling and sealing, the version of PWs.1 and 2 were contrary to each other. This is fatal to the prosecution. 11. In the light of the above, versions of PW1 and PW2 wherein contradictions of material points are found and having regard to the unreliable nature of the evidence of crucial witnesses Crl.A.94/06 7 casts serious doubt on the prosecution case. The conviction is not sustainable on the basis of this shaky evidence. Hence, appellant is entitled for the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence imposed by the court below are set aside and the accused is acquitted. The bail bond executed by him shall stand discharged. Sd/- **SUNIL THOMAS Judge** Sbna True Copy P A to Judge