Crl.Rev.Pet.No.4018 OF 2009
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
Crl.Rev.Pet.No.4018 OF 2009
AGAINST THE JUDGMENT IN CRL.APPEAL NO.179/2008 OF II ADDITIONAL
SESSIONS COURT, THODUPUZHA FATED 03.09.2009
AGAINST THE JUDGMENT IN SC NO.592/2005 DATED 12-06-2008 OF THE
ASSISTANT SESSIONS COURT,KATTAPPANA
REVISION PETITIONER/ACCUSED/APPELLANT:
RAMAR, S/O.LEKSHMANAN,
HOUSE NO. CP2/331,
SHAYAPURAM COLONY,
GUNDUMALA, BHAGAM,
CHINNANKAN VILLAGE,
IDUKKI DISTRICT.
BY ADVS.
SRI.JOICE GEORGE
SRI.LIJI.J.VADAKEDOM
SRI.RAJEEV JYOTHISH GEORGE
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY SR. PUBLIC PROSECUTOR SRI.M.S BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 04.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.4018 OF 2009
2
ORDER
Dated this the 4th day of January 2021 The revision petitioner is the accused in SC No.592 of 2005 on the file of the Assistant Sessions Court, Kattappana and the appellant in Crl.Appeal No.179 of 2008 on the file of the II Additional Sessions Court, Thodupuzha. The offence alleged against the accused is punishable under Section 55(a) and 8(2) r/w 8(1) of the Kerala Abkari Act
2. The prosecution case in brief is that, on 13.04.2003 at about 4.30 p.m., PW2 the Sub Inspector of Police, Santhanpara Police Station received reliable information that the accused was dealing with illicit arrack and was in possession of implements and utensils for manufacturing arrack and accordingly search was conducted at the residence of the accused, which situates in Ward II of Chinnakkanal Panchayath and seized two liters of contraband arrack and Rs.50,885/- from his possession. The accused was arrested, the contraband was seized and samples were taken in accordance with Rules and which on analysis was found illicit Crl.Rev.Pet.No.4018 OF 2009 3 arrack contrary to the provisions of the Abkari Act.
3. During the trial of the case, PWs 1 to 6 were examined and marked Exts.P1 to P5 and MOs 1 to 7 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. Ext.D1 and D1(a) were marked on his side. When the accused was called upon to enter on his defence, no defence evidence was adduced.
4. After having heard both sides, the trial court convicted the accused for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act. Accordingly, he was sentenced to undergo simple imprisonment for a period of two years and also to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo simple imprisonment for six months more. However, the accused was found not guilty for the offence punishable under Section 55(a)of the Abkari Act and he was acquitted thereunder. Feeling aggrieved, the accused preferred Crl.Appeal No.179 of 2008 before the II Additional Sessions Court, Thodupuzha. By judgment dated 03.09.2009, the learned Additional Sessions Judge allowed the Crl.Rev.Pet.No.4018 OF 2009 4 appeal in part by confirming the conviction under Section 8(2) r/w 8(1) of the Abkari Act, the sentence was modified to simple imprisonment for one year and a fine of Rs.1,00,000/-, in default of payment of fine to undergo simple imprisonment for three months more. Assailing the conviction and sentence the revision petitioner is before this Court.
5. The learned counsel for the revision petitioner submitted that the occurrence in this was on 13.04.2003 at 4.30 p.m. According to the learned counsel for the petitioner PW2-the detecting officer in this case prepared Ext.P1 seizure mahazar on 31.01.2005. According to the learned counsel for the revision petitioner, the seizure mahazar was not prepared by PW2 in accordance with law and it was not produced before the court in time. The learned counsel for the revision petitioner further submitted that Ext.P6 FIR was prepared on 13.04.2003 at 7.30 pm. However, it is submitted that no followup action was taken by PW2 subsequent to the registration of the crime. Learned counsel further submitted that there was long delay in producing the material objects before the court.
6. Per contra, the learned Senior Public Prosecutor Crl.Rev.Pet.No.4018 OF 2009 5 submitted that both the trial court and the appellate court concurrently held that the accused was in possession of contraband liquor and an amount of Rs.50,885/- on 13.04.2003 at 4.30 p.m. from his residence. Accordingly, they were produced before the court. It is submitted that when concurrent findings are sought to be set aside in revision, unless the findings are perverse, the revisional court would not be justified in exercising the powers under Section 401 of the Cr.P.C.
7. Heard Sri.Joice George, the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.
8. As per the prosecution case, PW2-the Sub Inspector of Police, Santhanpara arrested the accused on 13.04.2003 at 4.30 p.m from his residence and registered Ext.P6 FIR on 13.04.2003 at 7.30 p.m. Ext.P6 FIR would indicate that the accused was arrested on 13.04.2003 at 4.30 p.m. Thereafter, they were brought to the police station along with the contraband articles and registered Ext.P6 FIR for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act. It is seen from Ext.P6 that, it was produced before the court on 13.04.2003 along with the accused. In fact, Crl.Rev.Pet.No.4018 OF 2009 6 there was no delay in producing Ext.P6 before the court. However, the specific case of PW2 is that he seized the contraband and cash from the possession of the accused on 13.04.2003 at 4.30 p.m. However, Ext.P8 property list allegedly prepared by PW2 on 13.04.2003 at 4.30 p.m was produced before the court on 23.04.2003. There was ten days delay in producing the material objects before the court. When PW1 was examined before court, no explanation was offered for the delay in producing the material objects before court. His explanation is that he had seized an amount of Rs.50,885/- from the accused and it took considerable time to prepare an inventory of the same. This itself is an indication that Ext.P8 property list was not prepared along with the seizure mahazar at the time when the accused was arrested. In an abkari case, it is essential on the part of the abkari officer to seize the material objects from the spot along with the seizure mahazar. No seizure mahazar is seen exhibited in this case. However, Ext.P8 list of property was submitted before court ten days after the registration the FIR.
9. Item No.7 in Ext.P8 property list is the samples taken by PW2 at the time when the contraband was seized. Ext.P3 Crl.Rev.Pet.No.4018 OF 2009 7 chemical analysis report would show that the Chemical Examiner to Government received one sealed packet having a sealed bottle containing 180 ml of clear and colourless liquid alleged to be 'arrack' involved in Crime No.103/2003 of Santhanpara Police station for chemical analysis on 24.04.2003. According to the Chemical Examiner, the seals on the packet were intact with the sample seal provided. In fact, no specimen impression of sample seal is provided or copy of the forwarding note along with the sample seal is seen marked in evidence during the trial of the case. The seizure was not done correctly by PW2 when the contraband and other items were seized from the possession of the accused.
10. In fact, no evidence was adduced by PW2 to prove that the accused was in possession of illicit arrack inside his residential house bearing Door No.349 at Ward No.II of Chinnakkada Panchayat on the alleged date of occurrence. There was also no evidence to show that he was in possession of any apparels or utensils for manufacturing of illicit arrack at his residence on the date of occurrence. In fact, the contraband and other items including currency notes were seized from the accused without preparing a seizure mahazar. The seizure mahazar allegedly Crl.Rev.Pet.No.4018 OF 2009 8 produced along with the final report is dated 31.01.2005. It has no connection with the alleged seizure made by him on 13.04.2003 at 4.30 p.m. In the absence of a seizure mahazar, it is difficult to accept Ext.P8 list of property submitted before court by PW2 after ten days from the date of occurrence. The explanation offered by PW2 regarding the seizure of MOs1 to 7 series and their production before court are not reasonable.
11. Both the trial court and the appellate court mainly relied on the oral evidence of PW1 without considering the above material and legal aspects. Hence, the appreciation of evidence concurrently made by the trial court and the appellate court is incorrect, improper and illegal. The very foundation of the case is based on the evidence of PW2 and the evidence of PW2 is not reliable. Hence, the entire prosecution case set up by the prosecution on the strength of evidence let in by PW2. Thus the other evidence let in by the prosecution in support of the evidence adduced by PW2 is wholly unreliable.
In the result, the revision petition is allowed. The revision petitioner/accused is found not guilty for the offence under Section 8(2) r/w 8(1) of the Abkari Act and he is acquitted thereunder. Crl.Rev.Pet.No.4018 OF 2009 9 Cancelling his bail bond this Court directs that he be set at liberty. If any fine amount is deposited by the accused during the pendency of the revisional proceeding before the trial court, the same shall be refunded to the accused/revision petitioner, in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE dlk/04.01.2021