Kerala High Court
Shinoj @ Thomas vs The Sub Inspector Of Police on 29 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
CRL.A.No.1170 OF 2006
AGAINST THE JUDGMENT DATED 15.05.2006 IN S.C.NO.388/2003 OF
THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST
TRACK (ADHOC-I), KOZHIKODE
APPELLANT/ACCUSED NO.1:
SHINOJ @ THOMAS, S/O. JOSEPH
VADAKKEKUTTI HOUSE, KAKKADAMPOYIL P.O.,
KOODARANHI VIA, CALICUT.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
THIRUVAMBADY, KOZHIKODE.
2 STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY SMT. MAYA M.N, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.08.2018, THE COURT ON 29-01-2021 DELIVERED THE FOLLOWING:
Crl.A. No. 1170 of 2006
-:2:-
"C.R."
MARY JOSEPH, J
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Crl.Appeal No. 1170 of 2006
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Dated this the 29th day of January, 2021
JUDGMENT
The appeal on hand is directed against judgment dated 15.05.2006 of the Additional District and Sessions Judge, Fast Track (Adhoc I), Kozhikode (for short, 'the trial court') in S.C. No.388 of 2003.
2. The appellant is the first accused. Altogether 4 accused were involved in the case. Accused Nos. 2 to 4 were found not guilty by the trial court and were acquitted. This appellant was found guilty for the offence punishable under Section 55 (a) of the Abkari Act (for short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-(Rupees one lakh only) and in default of payment of fine to undergo rigorous imprisonment for six months. Aggrieved by the judgment, the first accused has approached this Court in the captioned appeal seeking to reverse the same.
3. Before adverting to the grounds of challenge, it is relevant to have a brief discussion about the facts of the case :
On 18.04.2001, the Sub Inspector of Police, Thiruvambadi, based on a reliable information obtained by him that someone is transporting Crl.A. No. 1170 of 2006 -:3:- Indian Made Foreign Liquor from Mahe to Kerala, after transpiring the said information to the Circle Inspector of Police, Thamarassery and as directed by him, proceeded to Thottathilkadavu bridge to inspect the vehicles passing through. A jeep bearing Registration No. KL-13/A 5194 was found coming from Omassery area and it was intercepted near Thottathilkadavu bridge. The appellant was found driving the jeep and accused Nos. 2 to 4 were sitting in the front seat with him. On examination of the vehicle, nine cardboard boxes covered with black plastic covers were found kept underneath the seat of the jeep in the backside platform. The packets were examined and 24 bottles each containing 375 ml of Indian Made Foreign Liquor of different brands were detected. The accused were arrested then and there. The contraband articles were seized after drawing samples therefrom. A seizure mahazar was also prepared. Thereafter, the accused and the properties seized from the spot were brought to Thiruvambadi Police Station and Crime No.38 of 2001 was registered. The investigation was pursued with and on concluding it, a final report was prepared and laid before Judicial First Class Magistrate Court-II, Thamarassery. The final report was received by the Magistrate and by proceedings initiated as C.P No.29 of 2003, committed the same to Court of Sessions, Kozhikode, wherefrom, it was made over to the trial court, for trial and disposal.
4. After holding preliminary hearing, charge was framed against all accused for commission of an offence punishable under Crl.A. No. 1170 of 2006 -:4:- Section 55(a) of the Act. The charge was read over and explained to each of the accused. They pleaded not guilty and faced trial.
5. On the side of the prosecution, witnesses were examined as PWs. 1 to 6 and documents were marked in evidence as Exts.P1 to P9. The properties seized and produced before the court were marked as MO1 series to MO3 series. On closure of the prosecution evidence, each of the accused were questioned under Section 313 (1) (b) Cr.P.C. The incriminating circumstances brought in evidence by the prosecution were put to the accused and each of them denied those. Accused No.1 had filed an elaborate written statement in addition. Accused Nos. 2 to 4 had pleaded innocence and false implication in addition. Accused No.3 has stated precisely that one of the passengers in the jeep had fled off on watching the police officers proceeding towards the vehicle. Grounds having not been made out from the evidence adduced by the prosecution, to record an order of acquittal, the accused were asked to enter on their defence. Accordingly, two witnesses were examined by the accused as DW1 and DW2.
6. On appreciation of the evidence available in toto, and upon evaluating the arguments respectively put forth by the learned Public Prosecutor as well as the learned counsel representing each of the accused, the trial court found the first accused guilty of the offence punishable under Section 55(a) of the Act. The court found accused Nos. 2 to 4 not guilty of that offence and acquitted them. The first Crl.A. No. 1170 of 2006 -:5:- accused who was convicted and sentenced as aforesaid, being aggrieved, has approached this court in the captioned appeal.
7. Shri. T.G Rajendran, the learned counsel and Smt.Maya M.N, the learned Public Prosecutor advanced arguments respectively on behalf of the accused and the prosecution.
8. According to Sri. T.G. Rajendran, the learned counsel for the appellant, virtually, four persons were chargesheeted by Thiruvambadi Police and the appellant herein is the first among them. According to him, as per the allegations of the prosecution in the Final Report accused, four in numbers, together were found transporting Indian Made Foreign Liquor in nine cartons in a jeep bearing Registration No.KL-13/A 5194. According to him, alleging that all four of them were possessing and transporting the contraband in the jeep together, based on the charge framed and trial held against them jointly, one alone was convicted and others were acquitted without any cogent reasons.
9. The learned counsel has also invited this Court's attention to the answers tendered by the accused while being questioned under Section 313(1)(b) Cr.P.C to impress that a question on conscious possession of the liquor loaded in the vehicle was not put to him. The learned counsel has relied on Avtar Singh and others v. State of Punjab [AIR 2002 SC 3343], to rest his contention that any of the incriminating circumstances brought in evidence by the prosecution when omitted to put to the accused during examination under Section Crl.A. No. 1170 of 2006 -:6:- 313 (1)(b) Cr.P.C, that by itself will form a good ground to view the trial as vitiated. According to him, on a scrutiny of the questions put to the accused during examination under Section 313(1)(b) Cr.P.C, a question about his conscious possession of the liquor was not found put to him and therefore, as held in Avtar Singh's case (Supra), the trial held against him will lost it's fairness and in that context the prosecution cannot raise a claim that it's case is proved beyond any reasonable doubt.
10. Drawing the Court's attention to the versions of two witnesses summoned and examined as DW1 and DW2, it is pointed out by the learned counsel that the persons actually responsible for loading the liquor on board the vehicle were not apprehended and the appellant was falsely implicated.
11. Lastly, it was urged by the learned counsel that the allegations in the charge framed by the court against the accused are insufficient to attract the ingredients of the offence under Section 55(a) of the Act. He has cited Binesh V. State of Kerala [2018 (1) KLT 747] to support his contention that the allegations levelled by the prosecution in the final report and associated materials, if will not suffice to frame a charge against the accused for the offence for which he was chargesheeted by the police, the court in seizin of it, while framing charges shall not supply the necessary inputs on its own, so as to make the offence attracted. On the basis of the contentions as stated above, Crl.A. No. 1170 of 2006 -:7:- the learned counsel has urged this court to appreciate the evidence of the prosecution in it's correct perspective to find out the infirmities involved in the impugned judgment and to correct those in interference.
12. Per contra, the learned public prosecutor has taken the stand that there was correct and proper appreciation of evidence by the trial court and the judgment under challenge only deserves to be maintained after discarding the untenable contentions now raised from the appellant's side.
13. A scrutiny of the evidence is called for in that backdrop and is done. CW1, who detected the offence and had been instrumental for holding the search and seizure of the contraband was examined as PW1. Undoubtedly he had managed to depose strictly subscribing the case of the prosecution. He has categorically stated that the legal formalities demanded by the Act in the context of the case are complied with. According to him, a Head Constable and Sub Inspector attached to Thiruvambadi Police Station had accompanied him to the spot. The prosecution had examined them as PWs 2 and 4 and their stand was also affirmative as far as compliance of formalities are concerned. Material inconsistencies were not noticed in their versions, rather those corroborate. Therefore, trial court cannot be found fault with in relying on their versions to hold that detection, search, seizure and sampling are established. PW3, the sole independent witness turned hostile to the prosecution by deposing against the true state of affairs. PW5 is the ASI Crl.A. No. 1170 of 2006 -:8:- of Police, Thiruvambadi Police Station who conducted investigation in the case and PW6 is the Sub Inspector of that Police Station who laid the final report before the court chargesheeting the accused. All the official witnesses maintained their loyalty to the prosecution case during trial.
14. As per the prosecution case accused four in numbers were involved in the transportation of liquor in a Jeep bearing Registration No.KL-13/A 5194. According to them, accused No.1 was driving the Jeep and accused 2 to 4 were sitting in the front seat along with him. The nine cardboard boxes covered with black plastic covers were found kept underneath the seat in the back platform of the jeep. Since the contraband was not found possessed by any of the accused, the prosecution is bound to establish who actually was in conscious possession of it, either all of them together or accused No.1 alone. The versions tendered by the official witnesses formed the very basis for the prosecution in it's venture to establish the case. None of them have deposed about conscious possession of the liquor by any of the four accused. The trial court has found from the evidence seized by it during trial that the 1st accused was driving the Jeep and accused 2 to 4 had boarded the Jeep as passengers from Thamarassery to Kakkadampoyil. The prosecution though examined PWs 1 to 6, none of them cared to tender evidence that accused 2 to 4 were occupying the vehicle to travel as passengers. They only say that among the four men found inside the vehicle at the time of interception by the police, one was driving the Crl.A. No. 1170 of 2006 -:9:- vehicle and the other three were sitting in the front seat with the driver. PW1 and PW2 were cited to speak that the detection, search, seizure and sampling of the liquor, preparation of seizure mahazar and arrest of the accused from the spot were done in strict compliance of the formalities. They had played their role well by deposing so in corroborative terms. PW3, though cited as an independent witness opted to depose against the prosecution case and her version turned as of no use to the prosecution in their venture to establish it's case. PW4 and PW5 have played their role in the investigation process and PW6, in the matter of verification of materials and laying of final report before the court.
15. It is discerned from a scrutiny of the versions of the above witnesses that none of them have stated that the accused were holding the contraband in their conscious possession. Each of the accused were questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence against them. It is found that a question with reference to conscious possession was not put to any of the accused by the trial court, for want of evidence in that regard.
16. Section 64 of the Act is relevant in the context. It enables the court to draw presumption as to commission of offences in certain cases coming under the Act. The provision takes in Section 55 of the Act and it says that a presumption is liable to be drawn against the accused, if he is unable to account for the possession of the contraband. It is Crl.A. No. 1170 of 2006 -:10:- indicated from the words, "it shall be presumed until the contrary is proved" that the presumption of commission of offence by the person against whom it was alleged is a rebuttable one and the onus is on the person charged and tried with for the offence, to adduce satisfactory evidence to account for the possession of the contraband found as transported in the vehicle. Therefore, even though evidence on conscious possession is not forthcoming, in view of the presumption under Section 64 of the Act, each of the accused ought to have been questioned by the trial court with reference to that.
17. Evidently, a question regarding conscious possession was not put to any of the accused by the trial court, while being examined under Section 313(1)(b) Cr.P.C. In view of the statutory presumption, the prosecution ought to have put such an incriminating circumstance to each of the accused so as to enable them to account for their possession of it satisfactorily, or to prove on the contrary.
18. All questions having incriminating flavour put to accused 1 to 4, were denied by each of them. Accused 2 to 4 have stated that they had boarded the vehicle to travel as passengers and therefore their implication in the offence is false. The first accused in the statement filed additionally has stated that accused 2 to 4 had boarded the vehicle as passengers and therefore, were totally unrelated to the contraband.
19. Though questions with reference to conscious possession were not put to, the first accused had taken the burden to explain that Crl.A. No. 1170 of 2006 -:11:- accused 2 to 4 were passengers in the Jeep driven by him and have no relation to the contraband seized from the vehicle.
20. The dictum in Avtar Singh (supra) says that non-examination of the accused with reference to a material factum of incriminating nature would vitiate the trial held against him. In that context, it is incumbent upon this Court to see whether the trial held against the accused is vitiated or not.
21. In the case referred to supra, the Apex court was dealing with a context in which bags containing poppy husk were seized from a vehicle which was driven by one of the accused and two of them were sitting over some bags boarded therein. As per the prosecution case, two more occupants were also there but they fled off while the vehicle was intercepted. The accused were not questioned under Section 313 Cr.P.C about their possession of poppy husk bags. It was held by the Apex Court in the context that, it cannot be taken as established on the basis of the evidence on record that the accused were in possession of poppy husk bags. Therefore the conviction of the accused by the trial court that stands confirmed by the appellate court was set aside. To have a better understanding, paragraph 6 of the judgment (supra) is extracted hereunder :
"6. xx xx xx The word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be Crl.A. No. 1170 of 2006 -:12:- satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants- one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under S.15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under S.114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under S.313 Cr.P.C, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S.313, it is well known is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the Crl.A. No. 1170 of 2006 -:13:- charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under S.114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under S.35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under S.54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for traveling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal".
22. A scrutiny of the record pertaining to examination of the accused under Section 313(1)(b) Cr.P.C, reveals that accused Nos. 2 to 4 have taken a stand of false implication. Apart from the plea of innocence, accused No.1 has taken a stand that accused Nos.2 to 4 were only passengers in the vehicle and have no relation to the contraband seized from the vehicle. It is also noticed that the stand as above was taken by the accused not as explanation to any queries put to account for their conscious possession, but generally.
Section 313 (1)(b)Cr.P.C is worthy to quote hereunder;
"313. Power to examine the accused.-Crl.A. No. 1170 of 2006 -:14:-
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court-
(a) xxxx
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: PROVIDED that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)"
23. The purpose of examination of accused under Section 313 Cr.P.C is to enable him personally to explain the circumstances appearing in evidence against him. Therefore, incriminating circumstances brought in evidence against the accused during trial alone can be put to the accused. It is pertinent to note that none of the witnesses examined by the prosecution has spoken about conscious possession of the contraband by any of the accused. The contraband was found kept under the back seat of the jeep and having been seized therefrom, none of the accused who were sitting in the cabin of the vehicle alongwith the driver, can be said to be in conscious possession of it, especially when evidence in that regard is not forthcoming.
24. Though the first accused was not put a question regarding conscious possession of the contraband loaded in the vehicle, he on his own, attempted to explain it by filing a written statement additionally and by examining two witnesses as DW1 and DW2.
Crl.A. No. 1170 of 2006-:15:-
25. In the additional written statement, he has stated that accused 2 to 4 being passengers in the Jeep have no connection with the contraband seized from the vehicle. He has also denied his connection with the contraband. However, the contraband was evidenced as seized from the vehicle. In the above scenario, being the driver of the vehicle and custodian of it at the relevant point of time, he will have to account for it satisfactorily.
26. Questioning of the accused under Section 313(1)(b) Cr.P.C is mandatory, its object being to afford an opportunity to the accused to explain the incriminating circumstances appearing in evidence against him, personally. It embodies in it 'Audi Alteram Partem', a fundamental principle of Natural Justice.
27. In the case on hand, the trial court failed to put a question on conscious possession of the contraband to the accused while being examined under Section 313(1)(b) Cr.P.C. But the trial court permitted the accused to file an additional written statement and received that on record. In the written statement, the 1st accused made an attempt to convince the court that himself and other accused were totally unrelated to the incident and falsely implicated. From the above stand taken by the 1st accused, it cannot be said that he has successfully accounted for the seizure of the contraband from the vehicle.
28. In the above circumstances, though the 1 st accused was not questioned on his conscious possession of the contraband while being Crl.A. No. 1170 of 2006 -:16:- examined under Section 313(1)(b) Cr.P.C, the additional written statement filed by him was received by the Trial Court. In the additional statement, the 1st accused volunteered to state that accused Nos. 2 to 4 being the passengers in the vehicle are unrelated to the contraband found in the vehicle and seized therefrom. In that context, the accused who had availed an opportunity to file an additional written statement explaining the circumstances cannot now turn around to contend that the trial faced by him lost it's fairness for non-questioning him specifically on conscious possession. Accused in the circumstances can only be taken to have been heard by the court on his conscious possession of the contraband which is a very relevant and material aspect to drive the court to arrive at a finding of guilt of the accused for commission of an offence under Section 55(a) of the Act. Therefore, the non-examination of the accused under Section 313 (1)(b) Cr.P.C in the case on hand cannot be said to be fatal to the prosecution case. The factual situation in the case on hand is differentiated from those in Avtar's case (supra) in the above manner and therefore, failure to question the accused specifically on his conscious possession under Section 313 (1)(b) Cr.P.C cannot be taken to have a fatal impact on the prosecution case on hand.
29. Then the question arises for consideration is whether the accused was successful in accounting for the possession of the contraband. Only four passengers were available in the vehicle and the Crl.A. No. 1170 of 2006 -:17:- 1st accused has stated that accused 2 to 4 were occupants in the vehicle as passengers having no connection with the contraband. If accused 2 to 4 were stated by the 1st accused as unaware of and unrelated to the contraband, the vehicle being in his custody at the relevant time, he ought to have stated something to reasonably account for the availability of contraband in the vehicle. On the contrary, he had raised a plea of false implication. In the above backdrop, this Court is convinced that the accused failed to account for the contraband seized from the vehicle, of which he was the driver and the custodian, for the time being.
30. The failure of the accused to account for the contraband on board the vehicle undoubtedly is a sufficient ground for drawing the presumption under Section 64 of the Act that he has committed the offence charged against him under Section 55 (a) of the Act.
31. The presumption under Section 64 is a rebuttable one and in an attempt to rebut it, the accused had examined DW1 and DW2. Therefore, a scrutiny of the evidence tendered by DW1 and DW2 is required to see whether the accused was successful in rebutting the presumption.
32. DW1 is one Mr. Hassan, who was working in a hotel at the relevant time. According to him, he had witnessed the seizure of the contraband from the accused, 4 or 5 years back. According to him, he could not recollect the month and date of occurrence but, has stated that the incident was occurred at Ambalappara Junction. According to Crl.A. No. 1170 of 2006 -:18:- him, on his way back home after taking bath from a river, he found some officials engaged in checking vehicles passing through Ambalappara junction. At that point of time, a jeep that reached there from Thottathilkadavu Bhagam was intercepted by the police. Four persons were found sitting in the front seat of the jeep and one at the back seat. When the vehicle was stopped, a person sitting in the back seat stepped down from the vehicle and rushed away. Four men sitting in the front seat were arrested and taken to the police station. Admittedly, signature was affixed by him in Ext.P3 Seizure Mahazar. In cross examination, he has stated that by the time he reached the spot, all four of them had stepped down from the vehicle. The version strictly contradicts with the one spoken in examination in chief that he had witnessed the interception of the vehicle, seating of four men in the front seat and fleeing of one among them from the vehicle etc. The discrepancy being material, credence of DW1 is only to be doubted.
33. DW2, examined by the defence is one Mr.Jibin, a native of Kakkadampoyil and an agriculturist. According to him, he had acquaintance with the first accused Shinoj @ Thomas, who is a jeep driver by profession and he used to hire the jeep driven by him for transporting plantains to a shop namely 'Haritha Stores' at Thamarassery. It was stated that the vehicle belongs to the first accused was hired by him on some day, 4-5 years back to transport plantains to the shop namely Haritha Stores. According to him, he did Crl.A. No. 1170 of 2006 -:19:- not return in the vehicle after unloading the bunches at the shop and found another man boarding the jeep therefrom with some packets of tiles. In cross examination, he has stated that accused Nos. 2 to 4 were not available in the jeep at the relevant time.
34. The version of DW2 was that he had travelled in the vehicle on the alleged day, accompanying the bunches of plantains and after unloading those at the shop, did not return. The version of the 1 st accused while being examined under Section 313 (1)(b) Cr.P.C. is crucial in that context. The incriminating circumstances brought against him in evidence when put to him were denied by him and a written statement was filed in addition. It was stated that accused Nos. 2 to 4 were passengers in the vehicle driven by him on the alleged day and they have no connection with the contraband seized from the vehicle. According to him, one man had also boarded the vehicle from Thamarassery with nine black card board packets containing tile pieces. According to the 1st accused when the vehicle was intercepted by the police, that man stepped down and fled off. The attempt of the accused while stating so is to attribute the role of conscious possessor of the contraband upon the man who according to him had fled therefrom.
35. The oral evidence tendered by DW2 when read with that of the first accused during examination under Section 313 Cr.P.C, it is discerned that accused Nos. 2 to 4 had boarded the vehicle only to travel. According to DW2 accused Nos. 2 to 4 were not inside the jeep Crl.A. No. 1170 of 2006 -:20:- when it returned from Thamarassery. But, the specific case of the 2 nd accused was that accused Nos.2 to 4 were inside the vehicle at the relevant time when it was intercepted by the police and the contraband was seized. As per the prosecution case also, the driver and three passengers (i.e. A1 to A4) were inside the vehicle when it was intercepted and the contraband was seized. Therefore, DW2 has narrated a story totally different from that spoken by the 1 st accused while being questioned under Section 313(1)(b) Cr.P.C. In that scenario the version of DW2 is only to be viewed with suspicion. Therefore, there cannot be any doubt about the failure of the accused to rebut the presumption of guilt against them.
36. The learned counsel has also questioned the legality and propriety of the charge framed by the court based on which the trial against the accused was held. Reliance was placed on Binesh's case (supra) wherein this Court has held that conviction which is the outcome of a trial held on the basis of an improperly framed charge is illegal and the prosecution is not justified in raising a claim in such circumstances that the trial held against is a fair one.
37. The offence alleged against the accused in the case on hand being one punishable under Section 55(a) of the Act, the ingredients that constitute the offence must find it's place in the charge framed by the court.
Crl.A. No. 1170 of 2006-:21:-
38. In Mohanan V. State of Kerala [2007 (1) KLT 845], a Division Bench of this Court had held that Section 55(a) is attracted only when persons involved in illegal import or transportation of liquor or in possession of it while being illegally imported. Therefore, for an offence under Section 55(a) of the Act to sustain in the case on hand, an accusation that the accused was in possession of liquor during the course of illegal import must be there in the charge. The charge framed by the court is required to be appreciated in that backdrop and is extracted hereunder:-.
"18-04-2001 നു 18.15 മണണികക്ക് നണിങ്ങൾ ഒതതത്തൊരുമണിച്ചു KL 13/A.5194 നമ്പർ ജജീപണിൽ തണിരുവമ്പത്തൊടണി -ഓമശശ്ശേരണി പബണികക്ക് ശറത്തൊഡണിൽ ശതത്തൊട്ടതണിൽ കടവക്ക് പത്തൊലതണിൽ നണിനക്ക് സുമത്തൊർ 150 മജീറ്റർ കണിഴകക്ക് മത്തൊറണി വടക്കു ഭത്തൊഗശതകക്ക് ശപത്തൊകുന അമ്പലലം ശറത്തൊഡക്ക് ജലംഗക്ക്ഗ്ഷനണിൽ കൂതട 216 കുപണി വണിശദേശ മദേദലം കടതണി തകത്തൊണ്ടു ശപത്തൊകുനതത്തൊയണി ശപത്തൊസണികക്യുഗ്ഷൻ ഭത്തൊഗലം ശരഖകളണിൽ നണിനലം പഥമ ദൃഷദത്തൊ തവളണിവത്തൊയണിരണിക്കുന. "
39. The only accusation against the accused was that they were engaged in transporting foreign liquor in a Jeep bearing Registration No.KL 13/A-5194 through Ambalam road junction. The charge does not incorporate in it ingredients to constitute the offences, as settled by the Division Bench in Mohanan's case (supra).
40. In that context, this Court has no hesitation to hold that the trial faced by the accused is undoubtedly an unfair one. Therefore, the finding of guilt of the accused under Section 55(a) of the Act, order of Crl.A. No. 1170 of 2006 -:22:- conviction passed and sentence imposed will not sustain in the eye of law and are only to be reversed.
In the result, the appeal succeeds and is allowed. The judgment under challenge only to the extent it convicts the 1 st accused for an offence under Section 55 (a) of the Act and sentences him is set aside. The bail bond executed by the appellant/ 1st accused is cancelled and he is set at liberty forthwith.
Sd/-
MARY JOSEPH JUDGE NAB/ttb