Kerala High Court
Sahadevan vs State Of Kerala on 3 February, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY,THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935
CRL.A.No. 1274 of 2005 ( )
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SC 345/2004 of ADDITIONAL SESSIONS COURT,FAST TRACK-I, PALAKKAD
APPELLANT(S)/ACCUSED::
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SAHADEVAN, S/O. VELAYUDHAN, IDACHIRA,
NENMENI P.O., KOLLENGODE VILLAGE, CHITTUR TALUK
PALAKKAD DISTRICT.
BY ADV. SRI.C.C.THOMAS (SENIOR ADVOCATE)
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA, REPRESENTED BY
CIRCLE INSPECTOR OF POLICE, KOLLANGODE POLICE STATION
PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SHRI N.SURESH
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 03-02-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.1274 of 2005
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Dated this the 3rd day of February, 2014.
JUDGMENT
Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Accused who stood a trial for an offence under Section 55(a) of the Abkari Act (for short, "Act") in S.C.No.345 of 2004 before the Additional Sessions Court, Fast Track - I, Palakkad is the appellant. He was convicted for the said offence and sentenced to undergo simple imprisonment for one year and to pay a fine of `1,00,000/-.
3. Prosecution case, in brief, is that at about 6.30 p.m. on 18.06.2000, the appellant/accused was found possessing five litres of arrack at the place of occurrence and he was apprehended with the contraband. The offence was detected by the Circle Inspector of Police. After completing the formalities, a crime was registered and he was produced before the learned Judicial First Class Magistrate, Chittur.
4. Evidence in the case consists of testimony of PWs 1 to 6 and Exts.P1 to P7 on the side of prosecution. No material objects were marked in this case. No defence evidence was adduced.
Crl. Appeal No.1274/2005 2
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. Learned Additional Sessions Judge mainly relied on the testimony of PWs 1 and 2 to find the guilt of the accused. Learned Additional Sessions Judge also based his reasoning to convict the accused that uncorroborated testimony of Police Officials alone is sufficient to convict an accused, if the testimony is found to be trustworthy and credible. Certain decisions on the point were also relied on. Learned counsel for the appellant contended that the conviction of the appellant for the offence is legally unjustifiable. According to him, there is no material to establish that the appellant was in possession of the contraband at the material time. I have gone through the testimony of PWs 1 and 2. PW1 was a Sub Inspector who got information about sale of illicit arrack and proceeded to the place of occurrence. He would depose that the accused was found standing on a mud road by the side of a paddy field. A can of 10 litres was found in a nearby place. The detection was at about 6.30 p.m. A glass was also seen there. The accused was apprehended from the place and articles were seized. Ext.P1 mahazar was prepared from the place of occurrence. PW2 also was there with the Police Party at the time of detection. These two witnesses were subjected to cross examination. PW1, at the time of cross examination, deposed that in addition to Police Crl. Appeal No.1274/2005 3 Officers and witnesses, other persons were also present at the place of occurrence. Learned counsel for the appellant contended that Section 36 of the Act insists the presence of witnesses other than Officers of Abkari, Excise, Police or Village Office. Section 36 of the Act reads as follows:
"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 witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.
Ext.P1 mahazar shows that two witnesses have signed on it. First witness is PW3. He turned hostile to prosecution. Second witness in Ext.P1 is a Police Constable. Learned counsel contended that there is a clear violation of the provisions in Section 36 of the Act as neither of the witnesses shall be an Officer in the Abkari or Police Department. In this case, out of two witnesses, one is a Police Officer. A decision rendered by a learned Single Judge of this Court in Rajamani v. State of Kerala (2012 (2) KLD 201) would show that absence of independent witnesses to the seizure mahazar will not vitiate the trial if materials brought on record justify conviction. Even if this cannot be taken as a fatal aspect to discard Crl. Appeal No.1274/2005 4 the prosecution case, learned counsel for the appellant would contend that the recitals in Ext.P1 coupled with the testimony of PWs 1 and 2 will not make out an offence under Section 55(a) of the Act.
7. It is argued by the learned counsel for the appellant that Ext.P1 seizure mahazar would show that the contraband was recovered from a place where the accused was found standing. There is no indication in Ext.P1 to show that the accused was possessing the contraband liquor, which is the essential ingredient of Section 55(a) of the Act. The recitals in Ext.P1 would show that he possessed only `240/- at the time of arrest. Can containing arrack and the tumbler were not taken from his possession. In order to show that mere presence of the accused near the contraband will not attract the offence under Section 55(a) of the Act, learned counsel for the appellant placed reliance on a decision in Nellikunnel Jose v. State of Kerala (AIR 2000 SC 3577(2)). That was a case where in the accused was found to be near a lorry in which the contraband liquor was transported. Supreme Court held that merely for that reason, the accused cannot be convicted for an offence under Section 55(a) of the Act. According to the learned counsel for the appellant, the dictum in that case is squarely applicable to this case. It may a hyper technical to contend that the accused must physically hold the contraband at the time of detection to book him for an offence under Section 55(a) of Crl. Appeal No.1274/2005 5 the Act. But, at the same time, the prosecution should allege and establish that there was some sort of connection between the accused and the contraband and it must be within his immediate possession to attract the offence. In the absence of any such recital in Ext.P1, oral evidence tendered by PWs 1 and 2 cannot improve the case beyond Ext.P1.
8. Learned counsel for the appellant relied on the fact that none of the articles alleged to have been recovered from the possession of the accused has been produced before the court. It is seen from the judgment of the learned Additional Sessions Judge that no material object has been exhibited in this case. Going by the prosecution case, there was recovery of about five litres of illicit arrack, a plastic can, a tumbler intended for sale of the arrack and the sale proceeds. None of them have been produced before the court. Learned counsel for the appellant placed reliance on a decision in Narayana Velichappada v. Sub Inspector of Police and another (2007 (4) KHC 748). In the facts and circumstances of the case, it was held that non-production of residue or any other materials before the court would show that the alleged seizure was not proved. In this case, there is no satisfactory explanation for non-production of either the contraband or the articles alleged to have been recovered from the place of occurrence. PW1 has admitted that forwarding note was prepared on 19.06.2000. However, records would show that the articles reached in Crl. Appeal No.1274/2005 6 court only on 22.06.2000. This fact has been taken cognizance of by the trial Judge. Placing reliance on the decision in Ravi v. State of Kerala (2011 (3) KLT 353) and Appukuttan v. State of Kerala (2013 (2) KLT SN 109, Case No.138), it was argued that in the absence of any satisfactory explanation for the delayed production of the articles before the court, the recovery itself becomes doubtful. Considering the materials on record, I find that the prosecution was not able to establish the guilt of the accused beyond reasonable doubt. The conviction of the appellant entered by the court below is not legally sustainable.
In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in S.C.No.345 of 2004 before the Additional Sessions Court, Fast Tract-I, Palakkad is hereby set aside. Appellant shall be set free, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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