Kerala High Court
Velayudhan vs Sate Of Kerala on 24 June, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 547 of 2003()
1. VELAYUDHAN, S/O. CHANDUKUTTY,
... Petitioner
2. BABU @ THAKKALI BABU,
Vs
1. SATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.SANJAY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.No. 547 OF 2003
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Dated this the 24th day of June,2010
ORDER
Petitioners the accused in S.C.113/1998 were convicted and sentenced for the offence under section 55(a)(b)and (g) of Kerala Abkari Act and sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000/- and in default rigorous imprisonment for six months, by Assistant Sessions Judge, Kozhikode in S.C.113/1998. Petitioners challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.274/1999. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision.
2. Learned counsel appearing for the revision petitioners and the learned Public Crl.R.P.547/2003 2 prosecutor were heard.
3. Prosecution case is that on 19.8.1997 at about 11.40 a.m. petitioners were found distilling illicit arrack in building No.14/1996 of Kunnamangalam Panchayat and they thereby committed the offences under sections 55(a), (b), and (g) of Abkari Act. Petitioners pleaded not guilty. The prosecution examined Pws 1 to 5 and marked 11 exhibits and identified nine material objects, the articles used for distilling arrack. On the side of the petitioners, Exts.D1 and D1(a) depositions of PW1, when he was examined at the committal stage in C.P.12/97 were marked. It is on this evidence learned Assistant Sessions Judge and the learned Additional Sessions Judge found the petitioners guilty. The argument of the learned counsel is that evidence of Pws.1 and 2 the Excise Officials should not have been believed by the courts below when Pws. 3 and 4 the independent witnesses who were allegedly present at the time of seizure turned hostile to the prosecution. It is argued Crl.R.P.547/2003 3 that even if the evidence of Pws.1 and 2 with Ext.P2 mahazar were accepted, there is absolutely no evidence as against the second petitioner. It was pointed out that as per Ext.P2 mahazar and the evidence of Pws.1 and 2 when the Excise Party reached near to the shed from where M0s 1 to 9 were seized, a person was found peeping out and finding the Excise party he ran away from there. When Pws. 1 and 2 entered the house, first petitioner was found distilling illicit arrack. There is no case that Pws.1 and 2 had occasion to identify the persons who ran away and therefore there is no evidence to connect the second petitioner with the distillation, possession or seizure. It was argued that though evidence of PW5 was relied on by the courts below, PW5 did not identify the petitioner as Babu shown in Ext.P11 and in such circumstances based on Ext.P11 second petitioner cannot be connected with the building from where M0s were seized or first petitioner was arrested. Learned counsel argued that though evidence of Pws. 3 and 4 Crl.R.P.547/2003 4 the hostile witnesses were relied upon by the courts below, their evidence also do not show that the shed from where M0s 1 to 9 were seized belong to the second petitioner and therefore there is absolutely no evidence to connect the second petitioner with the possession of M0s 1 to 9 or distillation of illicit arrack and therefore conviction of the second petitioner is illegal. Learned counsel also submitted that though Exts.P7 and P8 statements of the petitioners recorded by the Excise Officials were marked, being confession statements recorded by the Excise Officer, who is a Police Officer, in view of the amended Section 50 of the Abkari Act, those statements cannot be used in evidence against the petitioners. Reliance was placed on the decision of this court in Joseph v. State of Kerala (2010 (1) KLT SN 16 (Case No.18). Learned counsel argued that evidence of PW2 would establish that it is only a shed and is used by the workers, which is accessible by any person and in such circumstances, even first petitioner cannot Crl.R.P.547/2003 5 be convicted as done by the courts below. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction.
4. The evidence of PW1 the Excise Inspector, Kunnamangalam Range is fully corroborated by the evidence of PW2 who was also present along with PW1 at the time of seizure. Ext.P2 the mahazar, which is a contemporaneous record, prepared at the time of seizure corroborates their version on seizure. Their evidence would establish that on 19.8.1997, while on patrol duty Pws 1 and 2 getting credible information that arrack is being distilled in the house bearing Door No.14/96 of Kunnamangalam Panchayat, which is a thatched shed and they could see a person peeping out. Finding Pws. 1 and 2, he ran away from there. When Pws. 1 and 2 entered the thatched shed, they could see only the first petitioner in the process of distilling arrack. He was arrested and M0s 1 to 9 utensils and articles Crl.R.P.547/2003 6 used for distillation were seized. The question is whether the evidence of Pws.1 and 2 is trustworthy and reliable and even if it is accepted, whether there is any evidence to connect the second petitioner with the offence.
5. As rightly pointed out by the learned counsel appearing for the petitioners, the evidence of Pws. 1 and 2 establish that they did not have any opportunity to identify the person who was peeping out from that shed when Pws. 1 and 2 were approaching that house and later ran away before Pws.1 and 2 could reached the shed. They deposed that it was the second petitioner, solely based on the information gathered from the first petitioner. Therefore based on the evidence of Pws. 1 and 2, it cannot be found that second petitioner was present in that shed when Pws. 1 and 2 were approaching the shed or that he was a party to the distillation of arrack from that shed. What remains is Exts.P7 and P8 the statements of the petitioners recorded by PW1 and the evidence of PW5 and Ext.P11 the Crl.R.P.547/2003 7 certificate of ownership of the shed.
6. Though Exts.P7 and P8 statements were marked, their statements were recorded by the Excise Officer. By virtue of the amendment to Section 50 of the Abkari Act an Excise officer would be a Police Officer. As held by this Court in Joseph's case (supra) by virtue of amended Section 50 of Abkari Act, who is empowered to file a final report in accordance with 173(2) of Code of Criminal Procedure, with effect from 3.9.1997 an Excise Officer is to be treated as a Police Officer and if so by virtue of Section 25 of Indian Evidence Act, Ext.P7 and P8 statements recorded by PW1 are to be eshewed from the evidence. Hence those statements cannot be relied on.
7. PW5, though proved Ext.P11 certificate of ownership and deposed that the building belongs to Babu, as rightly pointed out by the learned counsel appearing for the petitioners, PW5 did not identify the second petitioner as Babu shown in Ext.P11. Ext.P11 certificate only shows that Babu Crl.R.P.547/2003 8 Koodathalummal is the owner of building No.14/96 (old No.7/830) of Kunnamkulam Grama Panchayat. There is no evidence to prove that Babu referred in Ext.P11, is the second petitioner Babu @ Thakkali Babu, s/o.Achuthan. Though learned Public Prosecutor pointed out that evidence of hostile witnesses Pws.3 and 4 show that they attested Ext.P2 mahazar near to the house of Babu and therefore Babu referred in Ext.P11 is the second petitioner. But they did not depose that the house of Babu is the thatched shed from where M0s 1 to 9 were seized. Evidence of Pws. 1 and 2 coupled with Ext.P2 mahazar do not show that second petitioner was residing in that house. Though the evidence show that in that shed there is a varandha a kitchen and a room, there is nothing to establish that the shed was used for the residence of the family of second petitioner. Therefore based on the evidence of Pws. 3 and 4, it cannot be held that the shed 14/96 from where M0s 1 to 9 were seized, is the house of the second petitioner. If that be Crl.R.P.547/2003 9 so, based on the evidence of Pws. 3 and 4 also it cannot be said that second petitioner is either the owner of the building or the person in possession of building 14/96. If that be the case, there is absolutely no evidence to connect the second petitioner with the offence. Hence his conviction is unsustainable.
8. But as against the first petitioner, position is different. Though learned counsel argued that evidence of Pws. 1 and 2 cannot be relied on, on going through the evidence, I find no reason to disbelieve their evidence. Though Pws. 3 and 4 turned hostile, that is not a ground to disbelieve the evidence of Pws. 1 and 2, as it is not uncommon in abkari cases, where witnesses to the seizure turn hostile to the prosecution. There is no law or rule that the evidence of the Excise Officials are not to be believed or that their evidence is to be viewed with suspicion. Their evidence is also to be appreciated like the evidence of any other witness. On such Crl.R.P.547/2003 10 appreciation, I find no reason to disbelieve their evidence. Evidence of Pws. 1 and 2 establish that getting information that illicit arrack is being distilled in the shed, they reached the thatched shed 14/96 of Kunnamangalam Panchayat and found the first petitioner in the process of distilling arrack. Therefore conviction of the first petitioner for the offence under sections 55(b) and
(g) of Abkari Act is perfectly legal. But in the absence of a case that first petitioner was either importing or exporting liquor, he cannot be convicted for the offence under section 55(a) as held by this court in Surendran v. Excise Inspector (2004(1) KLT 404) and Mohanan v. State of Kerala (2007(1) KLT 845).
Revision is allowed in part. Conviction of the second petitioner for the offence under section 55(a)(b) and (g) of Abkari Act is set aside. He is found not guilty of the offences and is acquitted. Conviction of the first petitioner for the offence under section 55(a) is set aside and is acquitted Crl.R.P.547/2003 11 of that offence. Conviction of the first petitioner for the offence under section 55(b) and
(g) and the sentence is confirmed. Assistant Sessions Judge, Kozhikode is directed to execute the sentence as against the first petitioner. First petitioner is directed to appear before the Assistant Sessions Judge, Kozhikode on 27.7.2010. Bail bond executed by the second petitioner stands cancelled. If he has deposited any amount pursuant to an order of this court, before the trial court, it shall be reimbursed to the second petitioner.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT SEPTEMBER,2006