Kerala High Court
Rajan vs State-Sub Inspector Of Police on 17 May, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
CRL.A.No. 970 of 2004 (A)
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[AGAINST THE JUDGMENT IN SC 20/2003 of ADDL.SESSIONS COURT (ADHOC)-
II, THODUPUZHA DATED 17-05-2004]
APPELLANTS(S)/ACCUSED:
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1. RAJAN, S/O.MADHAVAN,
ARIPPANKUNNEL, NARAKAKKANAM, THANKAMANI VILLAGE.
2. THOMAS, S/O.MATHEW, ANIKATTU HOUSE,
NARAKAKKANAM, THANKAMANI VILLAGE.
BY ADV. SRI.GRASHIOUS KURIAKOSE
RESPONDENT(S)/COMPLAINANT:
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STATE-SUB INSPECTOR OF POLICE,
IDUKKI, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No. 970 of 2004
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Dated this the 23rd day of September, 2013
O R D E R
Appellants are accused Nos.1 and 2 in Crime No.138 of 2001 of Idukki Police Station, who faced prosecution along with other accused in S.C.No.20 of 2003 on the file of the court of Additional Sessions Judge (Adhoc)-II, Thoudpuzha and in this appeal, they are challenging their conviction and sentence for the offence under Sections 55(b) and 55(g) of the Abkari Act.
2. The prosecution case is that on 20.7.2001 at about 3.45 p.m. the accused Nos.1 to 4 were found by the Police, engaged in distilling arrack at a cave situated in the Kalyanathandu Hill and on seeing the police party, accused Nos.3 and 4 escaped from the scene of occurrence. But accused Nos.1 and 2 were arrested from the spot and the Police seized arrack and materials used for distilling arrack from the possession of the accused. Thus, according to the prosecution, Crl.A.No.970 of 2004 :-2-:
accused Nos.1 to 4 have committed the offences punishable under Sections 55(b),55(g) and 8(2) of the Abkari Act.
3. The Police, on completing the investigation in Crime No.138 of 2001 of the Idukki Police Station, preferred their report based upon which S.C.No.20 of 2003 is finally instituted in the Sessions Court. When the accused appeared, a formal charge was framed against them for the above offences and when the same was read over and explained to them, they denied the same. Consequently, the trial was proceeded further, during which PWs.1 to 5 were examined from the side of the prosecution and Exts.P1 to P11,P5(a) and P9 series were produced and marked. MOs.1 to 13 are also produced and identified as material objects. Finally, the trial court has found that accused Nos.1 and 2 have committed the offences charged against them and charge levelled against accused Nos.3 and 4 could not be established beyond reasonable doubt and accordingly, they are acquitted giving benefit of doubt. On convicting accused Nos.1 and 2 for the offences Crl.A.No.970 of 2004 :-3-:
under Sections 55(b),55(g) and 8(2) of the Abkari Act, the present appellants, who are accused Nos.1 and 2, are sentenced to undergo rigorous imprisonment for one year each and a fine of `1 lakh each and in default, to undergo simple imprisonment for a period of two months under Section 55(b) of the Abkari Act. They are also sentenced to undergo rigorous imprisonment for one year each and fine of `1 lakh each and in default, to undergo simple imprisonment for two months under Section 55(g) of the Abkari Act. The sentence is ordered to run concurrently. Set off is also allowed. It is the above order of conviction and sentence are challenged in this appeal.
4. Heard Sri.Grashious Kuriakose, learned Senior Counsel for the appellants and the learned Public Prosecutor for the State.
5. Learned counsel for the appellants vehemently submitted that the judgment of the trial court is liable to be set aside mainly on two grounds. According to the learned counsel, the learned Judge of the trial court failed to consider that the prosecution has miserably failed Crl.A.No.970 of 2004 :-4-:
to comply with the mandate contained as per Section 36 of the Abkari act. The other ground raised by the learned counsel is that the inordinate delay in producing the material objects before the court has not been considered by the trial court and thus, the appellants are entitled to get the benefit of doubt, but the trial court, ignoring the above patent illegality on the part of the prosecution, convicted the appellants.
6. The learned Public Prosecutor, countering the arguments advanced by the learned counsel for the appellants, vehemently submitted that the evidence of the prosecution is intact and the contemporaneous documents relied on by the prosecution proved positively the involvement of the appellants/accused, which was rightly approved by the trial court as per the impugned judgment. Thus, according to the prosecution, no interference is warranted. It is also the contention of the learned Public Prosecutor that the place of occurrence is not a public place and therefore, it is impossible to get Crl.A.No.970 of 2004 :-5-:
independent witness and therefore, in the given circumstances, it cannot be said that there was no compliance of Section 36. It is also pointed out that the accused is produced on the next day to the date of occurrence and the seizure have already been reported to the court and hence, it cannot be said that there is any laches in producing the material objects and even if there is delay, the same is properly explained. Therefore, according to the learned Public Prosecutor, none of the contentions of the learned counsel for the appellants is sustainable and no interference is warranted with the findings of the court below.
7. I have carefully considered the arguments advanced by the Senior counsel for the appellants and the learned Public Prosecutor. I have carefully gone through the deposition of witnesses and the materials.
8. The specific case of the prosecution is that when PW5 and party were on patrol duty and they reached at a point near the toddy Crl.A.No.970 of 2004 :-6-:
shop at Narakakkanam, they got information about the illicit distillation of arrack at a cave situated in the Kalyanathandu Hill. Consequently, they procured the jeep driven by PW1 and proceeded to the spot and had seen that the accused Nos.3 and 4 ran away from the spot and they arrested accused Nos.1 and 2. As I indicated earlier, to prove the above prosecution case, PWs.1 to 5 were examined and certain documents were produced. On examination of the entire prosecution case and its evidence, in the light of the arguments advanced by the learned Senior counsel for the appellant, it appears to me that the prosecution case is clouded with doubt. According to Pws.2 and 5, when they were on patrol duty they reached at Narakakkanam and when they reached at Narakakkanam Toddy shop, they got information about the illicit distillation. PW2, during his chief examination itself, stated as follows:-
"..................... police four wheel
PW1 jeep SI .
Crl.A.No.970 of 2004
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. .................."
(emphasis supplied)
But, it is relevant to note that the informant is not a made as a witness and he was not examined, though PW2 had claimed that he was taken along with them as a witness. According to PW2, who was a witness to Ext.P1 seizure mahazar, the jeep driven by PW1, who used to ply his vehicle at Cheruthoni when coming from Kattappana, was stopped and was procured to go to Kalyanathandu Mountain. Same is the stand taken by PW5, the detecting officer. But, PW1, the driver of KL6-5630 jeep, who is one of the attestors to Ext.P1 mahazar, whose jeep was allegedly procured by Pws.2 and 5 for going to Kalyananathandu Mountain deposed as follows:-
" jeep Police .
.
Police . S.I-
Police- .
Police ."
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So, about the arrival of PW1 at the place of occurrence and about the so-called procuring of the jeep driven by PW1, the evidence of PWs.2 and 5 is contradicted by the evidence of PW1/the driver of the jeep.
9. More over, it is the case of the official witnesses that when Pws.2,5 and others went to the place of occurrence, they took the assistance of a photographer for taking snaps of the accused as well as the place of occurrence and the implements allegedly used for distillation. Suffice to say, the said photographer is also not made as a witness.
10. As I indicated earlier, the learned Senior counsel strenuously submitted that Section 36 of the Abkari Act which is mandatory in nature is not complied with. I find some force in the above submission. The proviso to Section 36 reads as follows:-
"36. Searches how to be made:- All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure,1973 (Central Act 2 of 1974) Provided that the persons called upon to attend and Crl.A.No.970 of 2004 :-9-:
witness such searches shall include at least two persons neither of whom is an Abkari,Police or Village Officer."
But, in the present case, from the admitted case of the prosecution, it can be seen that there was an informer and there was a photographer, but none of them was made as witness to the search. In Ext.P1 mahazar, among the two witnesses, PW2 is a Police Personnel. The other witness is PW1, who is the driver of the jeep which I mentioned earlier, but his evidence shows that the versions given by Pws.2 and 5 are incorrect and there is clear contradiction with the evidence of Pws.2 and 5 as to how PW1 had gone to the scene of occurrence. So, on a close scrutiny of the prosecution evidence, in the light of the first ground taken by the learned counsel for the appellant, it can be seen that there is total violation of the mandatory provision contained in Section 36 of the Abkari Act and therefore, the benefit of the same will go in favour of the appellants.
11. Another point raised by the learned counsel for the appellants Crl.A.No.970 of 2004 :-10-:
is about the delay in producing the contraband article before the court below. The date of the alleged occurrence was on 20.7.2001 and as per the prosecution case, the entire documents except Exts.P9 and P10 prepared on 21.7.2001 and Exts.P9 and P10 were prepared on 21.7.2001, still then all the documents were produced before the court only on 23.7.2001. Pws.2 and 5 admitted that the Idukki Police Station and the Judicial First Class Magistrate Court, Idukki are situated adjacently. If that be so, it was incumbent upon the prosecution to explain the reason for not producing the material objects in the court on any of the dates either on 21.7.2001 or 22.7.2001. It is pertinent to note that the material objects are produced only on 25.7.2001. It is pertinent to note that the crime was detected at about 3.45 p.m. on 20.7.2001 and on that day, it is practically impossible to produce the documents and material objects.
But the documents relied on by the prosecution were produced before the court on 23.7.2001, therefore, especially when the Police Station Crl.A.No.970 of 2004 :-11-:
and the court are situating adjacently, it is incumbent upon the prosecution to produce the material objects on that day itself. The only explanation given by PW5 is to the effect that due to work pressure, he could not produce the material objects. The above explanation, according to me, cannot be swallowed with a pinch of salt. If actually there was a seizure and Ext.P1 mahazar was prepared on 20.7.2001, on the next day of the seizure, the contraband article as well as the document could have been produced before the court at least on the date of producing the documents or the accused. But, there is no convincing explanation. The learned Public Prosecutor strenuously submitted that by producing the documents, the seizure was reported to the court and therefore, there is substantial compliance. I am unable to sustain the above contention. A Division Bench of this Court in a decision reported in Ravi v. State of Kerala [2011(3) KLT 353] has held that production of the property before court without unreasonable delay is also a necessary requirement of Crl.A.No.970 of 2004 :-12-:
law. Delay in producing the property before Court, by itself, cannot be fatal to the prosecution if the delay can be satisfactorily explained. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate "forthwith" either by virtue of S.103 (2) Cr.P.C. or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. In the present case, it can be seen that the facts involved in the case show that the Police Station as well as the court are in the same vicinity. So, the explanation offered by the prosecution for the non-production of the contraband article or the delayed production of the contraband articles is not acceptable and therefore, in that point also, the prosecution case goes. Crl.A.No.970 of 2004
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12. In the light of the above discussion and the evidence and materials referred to above, according to me, the prosecution has miserably failed to prove its case against the appellants beyond shadow of doubt and therefore, the consequent benefit goes in favour of the appellants. Hence, this Court cannot approve the finding of the court below and the conviction recorded against the appellants and accordingly, the conviction recorded against the appellants by the trial court is set aside.
In the result, this Criminal Appeal is allowed acquitting the appellants/accused of all the charges levelled against them and the judgment dated 17.5.2004 in S.C.No.20 of 2003 of the court of Additional Sessions Court (Adhoc-II), Thodupuzha is set aside and the bail bonds, if any, executed by the appellants shall stand cancelled and they are set at liberty.
V.K.MOHANAN, Judge MBS/ Crl.A.No.970 of 2004 :-14-: