Kerala High Court
Kumar vs State Of Kerala on 29 November, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
CRL.A.No. 1113 of 2006
AGAINST THE JUDGMENT IN SC 1824/2001 of ADDL.S.C.-TRIAL OF ABKARI
ACT CASES,NEYYATTINKARA DATED 16-05-2006
AGAINST THE ORDER IN CP 289/2000 of J.M.F.C.-III,NEYYATTINKARA
APPELLANT/ACCUSED:
KUMAR, S/O.KRISHNAN,
AGED 1 YEARS
PARAYAN VILEKATHU VEEDU, VENGANNOOR DESOM,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. KUMAR (PARTY )
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE EXCISE INSPECTOR,, THIRUVANANTHAPURAM,,
THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
SRI SANTHOSH PETER-PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 1113 of 2006
2
JUDGMENT
The appellant herein challenges the conviction and sentence against him under Section 58 of the Kerala Abkari Act('the Act' for short) in S.C No.1824/2001 of the Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge for the trial of Abkari Cases, Neyyattinkara, on the allegation that at about 9.00 a.m on 01.11.1999 at Venganoor, he was found possessing five litres of arrack in a plastic can. The offence was detected by a Preventive Officer of the Thiruvananthapuram Excise Range. He arrested the accused on the spot, and seized the contraband articles as per a mahazar. On the basis of the arrest and seizure, the Excise Inspector of the range registered the crime and occurrence report. Another Excise Inspector conducted investigation and submitted final report in court.
2. The accused appeared before the learned CRL.A.No. 1113 of 2006 3 trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses and proved Exts.P1 to P7 documents in the trial court. The MO1 property was also identified during trial. The accused denied the incriminating circumstances and projected a defence of total denial. He did not adduce any evidence in defence.
3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of ₹1 lakh by judgment dated 16.05.2006. Aggrieved by the judgment of conviction, the accused has come up in appeal.
4. On hearing both sides, and on a perusal of the materials, I find some infirmities and suspicious circumstances in this case, the benefit of which must go to the accused.
5. Of the six witnesses examined in the trial court, PW3 is the Preventive Officer who detected the offence and PW2 is the Preventive Officer who CRL.A.No. 1113 of 2006 4 assisted him. PW1 examined as an independent witness turned hostile. PW4 is the Excise Inspector who registered the crime and occurrence report and and PW5 is the Excise Inspector who conducted investigation. PW6 is the court staff who claimed to have collected sample from the total quantity of liquid as authorised by the learned Magistrate. PW2 and PW3 have given evidence regarding the arrest of the accused and also the seizure of a plastic can containing some liquid. As regards the fact of arrest, there is some inconsistency in the evidence of PW2 and PW3. When the Detecting Officer stated that the accused was caught red- handed immediately on seeing him in suspicious circumstances, the evidence of PW2 is that the accused in fact ran away on seeing the Excise party, but he was chased and arrested. This is the material inconsistency on factual aspects. Anyway, the crucial question is whether the liquid contained in the plastic can alleged to have been seized from the hands of the accused was CRL.A.No. 1113 of 2006 5 identified as arrack as the prosecution would allege.
6. The Detecting officer or PW2 has no case that any sample was taken from the total quantity of liquid contained in the MO1 plastic can. In court, the two witnesses identified MO1 as the can seized from the hands of the accused. Curiously enough, PW3 stated in evidence that the seal now seen on MO1 is not the seal affixed by him. This means that MOI is or cannot be the plastic can seized by PW3 from the hands of the accused. Admittedly, no sample was taken by PW3 from the liquid contained in the plastic can. PW6 is the Clerk attached to the Judicial First Class Magistrate Court, Neyyattinkara. Her claim is that sample was collected by her as authorised by the learned Magistrate. There is absolutely nothing to show that she was so authorised by the learned Magistrate. She stated that the order passed by the learned Magistrate is contained in the forwarding note. Such a document is not seen CRL.A.No. 1113 of 2006 6 proved in evidence. The prosecution has not produced anything to show that PW6 was at any time authorised by the learned Magistrate to collect sample in this case. It is not known what seal was affixed on the sample or who affixed the seal.
7. The case of PW3 and PW4 is that the plastic can seized from the hands of the accused was produced in court in a sealed condition. PW3 stated that the seal now seen on the can is not the seal affixed by him. Anyway, it is a fact that if at all PW6 had collected any sample, it was taken from a sealed plastic can. There is nothing to show that she was so authorised by the learned Magistrate to collect sample. If so, sample was collected by her from a sealed can without authority. Nothing more is required to find tampering with the property.
In the result, this appeal is allowed. The appellant is found not guilty of the offence alleged against him under Section 58 of the Act and he is acquitted of the said offence in appeal. CRL.A.No. 1113 of 2006 7 Accordingly, the conviction and sentence against him in SC 1824/2001 of the court below will stand set aside, and the appellant will stand released from prosecution.
Sd/-
P.UBAID
ma /True copy/ JUDGE
P.S to Judge