Biju @ Sasi vs State Of Kerala on 12 August, 2011
11. The defence very much relied upon Ext.D1
ownership certificate issued by the Secretary, Vellavoor
Grama Panchayat which shows that the accused is the
owner of the building No.VI/244 whereas the door number
of the building where from the case was detected was
No.IV/399. The learned counsel for the accused has relied
upon the decision in Sambasivan v. State of Kerala,
A.S.I. of Police [2007 (1) KHC 462] to support his
argument that the prosecution has to prove that the place
Crl.A.No.1532 of 2003
-: 10 :-
from where contraband articles were seized actually
belonged to the accused and the accused was the person
responsible for keeping the contraband articles. Facts of
that case are entirely different. It is not a case where the
prosecution wanted to establish its case based on the
ownership of the building for the seizure of the articles from
that building. But it is a case where the accused was
caught in flagrante delicto. He was found engaged in the
distillation of illicit arrack and was thus caught red handed.
Therefore, absence of proof of ownership of the building is
quite immaterial. The fact that the accused is the owner of
another building (building bearing No.VI/244) will not come
his rescue to contend that he was not apprehended by PW3
and PW5 while he was engaged in illicit distillation of
arrack. But the question is whether there is convincing
evidence to hold that the accused was engaged in
distillation of illicit arrack and was in possession of stills,
utensils and other apparatus for manufacturing liquor. The
Crl.A.No.1532 of 2003
-: 11 :-
fact that the independent witnesses chose to betray the
prosecution cannot over turn the prosecution case since the
propensity for independent witnesses to turn hostile in such
cases; especially in abkari cases has become the order of
the day. The fact that witnesses 1, 2 and 4 did sign the
search list prepared contemporaneously is a strong
circumstance to hold that they were in fact present at the
time and place of detection of the crime. They shifted their
loyalty to the accused, for obvious reasons. But that is no
reason to discard the evidence given by PW3and PW5 and
the contemporaneous record Ext.P1 and the materials
collected during the search conducted by PW3.