K. Krishnan vs State Of Kerala
2021 Latest Caselaw 11292 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                          CRL.A.No.793 OF 2011

   AGAINST THE JUDGMENT DATED 05-05-2011 IN S.C.NO. 654/2007 OF
        ADDITIONAL DISTRICT COURT (ADHOC-III), KASARAGODE


APPELLANT/ACCUSED:

             K. KRISHNAN, S/O. APPU
             PADINHAREKKARA,
             CHALAKKAD,
             KOLATHUR VILLAGE.

             BY ADV. SRI.SOJAN MICHEAL

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             (STATION HOUSE OFFICER, BEDAKAM POLICE STATION),,
             REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY SRI. M.S.BREEZ, SENIOR PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2021,
THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No. 793 of 2011          2


                             JUDGMENT

The appellant is the convict in S.C.No.654/2007 on the file of

the Additional Sessions Court, (Adhoc)-III, Kasaragod, who faced

trial for an offence alleging under Section 58 of the Abkari Act,

hereinafter referred to as the Act. The precise allegation against the

appellant is that, on 22.12.2006, at 1.30 P.M., the Sub Inspector of

Police, Bedakam Police Station, in Kasaragod District and party found

him in illegal possession of 30 litres of arrack; that day at 1.30 P.M.,

when his house No. BP I/649-A of Padinharekkara, Chalakkad in

Kolathur Village was searched, 30 litres of arrack made in Karanataka

State was found stored in 300 sachets, each containing 100 ml., on the

shelf in the south western corner of his house. Thus Crime No.

161/2006 of the Bedakam Police Station was registered and the

accused/appellant was arrested along with the contraband.

2. After investigation, the Sub Inspector laid the charge sheet

before the Judicial First Class Magistrate, Kasaragod, who after

completing the necessary formalities under Section 207 of the Code of

Criminal Procedure, hereinafter referred to as the Cr.P.C., committed

the case to the Sessions Court, Kasaragod under Section 209 of the

Cr.P.C.

3. The appellant was defended by a counsel of his choice.

After hearing counsel on both sides, when a charge under Section 58

of the Act was framed, read over and explained, he pleaded not guilty.

He was on bail.

4. On the side of the prosecution, five witnesses were

examined and Exts.P1 to P10 were marked. After closing the

prosecution evidence, when examined under Section 313(1)(b) of the

Cr.P.C., he denied all the incriminating materials. He also filed a

statement contending that he was being prosecuted on the basis of

fabricated materials. According to him, he is not a resident of building

No. BP II/649-A of Bedadukka panchayat, he has no such house. He

is a resident of BP II/497-A. He has no other residential building. He

is innocent and a false case was foisted against him. He denied that he

was arrested by the police. Seizure of the contraband from his

possession also was denied by him.

5. As it was not a fit case for acquittal under Section 232 of

the Cr.P.C., the learned Additional Sessions Judge called upon him to

enter on his evidence in defence. Accordingly, the Secretary of the

Bedadukka Grama Panchayat was examined as DW1 and Exts.D1 to

D4(a) were marked. Exts. C1 and C1(a) were also marked as court

exhibits. After hearing counsel on both sides, by the impugned

judgment dated 05.05.2011, repelling the plea of innocence, the

learned Additional Sessions Judge found him guilty of offence

punishable under Section 58 of the Act and sentenced to undergo

rigorous imprisonment for 41/2 years and pay fine of Rs. 1,00,000/-, in

default to undergo rigorous imprisonment for three months. He was

also found entitled to get the benefit under Section 428 of the Cr.P.C.

That finding of conviction and sentence are challenged before this

Court under Section 374(2) of the Cr.P.C.

6. I heard the leaned counsel for the appellant and also the

learned Senior Public Prosecutor. The learned counsel raised three

contentions before this Court. According to him, the definite case of

the prosecution is that the contraband items were seized from his

house, BP I/649-A in Padinharekkara, but he has no such residence

nor the building is in his possession. The documents produced by the

prosecution would show that the items were seized from BP II/649-A.

Secondly, it was argued that the Ext.P7 Inventory was prepared by the

Sub Inspector of Police, which is violative of Section 53A of the Act.

Thirdly, it was argued that there is no evidence that the appellant was

arrested, so long as no supporting materials are available. The counsel

also relied on the decision reported in Balakrishna Rai. v. State of

Kerala [2020(3) KLT 727].

7. I heard the learned Senior Public Prosecutor also and

perused the trial court records.

8. In order to prove the guilt of the appellant, the prosecution

examined five witnesses of which PW1, Sub Inspector and PW4

Police Constable who accompanied him, have supported the

prosecution case. PW2 attester to the Ext.P2 search list, though

admitted having signed the document, denied the seizure of so much

quantity of arrack from the possession of the appellant.

9. The case of the prosecution is that on 22.12.2006, the

PW1 Sub Inspector got reliable information about the illegal storage

of large quantity of arrack by the appellant, after preparing and

sending the Ext.P1 search memo, the police party proceeded to the

residence of the appellant; on search, 300 sachets of Karnataka made

arrack found stored on the shelf on the eastern wall of the room on the

south western corner of his house; one of the sachets was opened at

the place itself and its content was tested by smelling and tasting; it

was confirmed that it was Karanataka made arrack; a few more

sachets were also opened as samples and samples were separately

collected in a bottle; the remaining sachets were also seized under the

search list, the appellant was arrested from the spot itself and was

produced before court. I have no doubt that the defence could not

make inroads into the testimony of PWs 1 Sub Inspector and PW4

Police Constable who accompanied him.

10. PW2 A. Ashokan deposed that he has not seen the Sub

Inspector and party searching the house or seizing any contraband

therefrom. He identified his signature found on Ext.P2 search list,

which according to him was attested at Padinharekkara, where he

found the appellants sitting in the police jeep. He was declared hostile

to the prosecution. In cross examination by defence, he said that he

signed the Ext.P2 at the police station. According to him, since he

found the appellant being taken to the police station, he went there and

then signed the document.

11. PW3 is an attester to the Ext.P8 scene mahazar and PW5

is the former Secretary of the Bedadukka panchayat, who issued the

Ext.P9 ownership certificate with reference to the building tax

assessment register. As per Ext.P9, the appellant is the owner of

building No. BP I/649-A.

12. It was through DW1, the successor Secretary of the Grama

panchayat that Exts.D1 to D4(a) and Exts. C1 and C1(a) were

marked. Through DW1, it was brought out that the appellant is the

owner in possession of building No.BP I/649-A of the panchayat.

Exts. D2 and D3 were marked to make out that he is the owner in

possession of building No. BP II/497-A. The attempt of the defence

was to make it out that the appellant is in possession and enjoyment of

building No. BP II/497-A, that he has no building BP II/649-A as

such. Exts.C1 and C1(a) are the relevant extract of Building Tax

Assessment Register of building No. BP II/497-A. It is in the name of

the appellant.

13. After considering the rival contentions and evidence, the

learned Sessions Judge concluded that there is no building as such as

BP II/649-A, the building searched by the police is BP I/649-A, which

is in the name of the appellant, that he is in possession and enjoyment

of the building, the items were seized therefrom and therefore, having

regard to the chemical examination report, he is liable to be convicted

under Section 58 of the Act.

14. After re-visiting the evidence and materials brought out, I

am of the considered view that, for reasons more than one, the

prosecution could not make out a case against the appellant beyond

reasonable doubt. Firstly, as adverted to earlier, the final report leaves

no room for doubt that the contraband items were seized from

building No.BP I/649-A in Padinharekkara, which is in the possession

and ownership of the appellant. No doubt Ext.P9 ownership

certificate also supports this version, which indicates that K. Krishnan,

son of Appu, Kolathur, Chalakkad, that is the appellant, is the owner

of the building No. BP I/649-A (Tiled), according to the Assessment

Register of buildings for the year 2006-07 of Badadukka panchayat.

On the other hand, at least three material documents produced and

relied on by the prosecution give a different version. Ext.P2 is the

search list prepared by the Sub Inspector and party at the time of

conducting search and seizure of the items. The search list indicates

that the building searched by the Sub Inspector was BP II/649-A.

Pursuant to the detection of the offence, a crime was registered as

Crime No. 161/2006 of that police station under Section 55(a) of the

Act, where also it is shown that the items were seized from BP II/649-

A. Added to this, there is the Ext.P8 scene mahazar where also it is

unambiguously shown that the place of occurrence is building No. BP

II/649-A. To put it in other words, the final report and these material

documents do not go hand in hand.

15. No doubt by producing Exts.D1 to D4 etc., the appellant

could make clouds in the version of the prosecution. The appellant

wanted to make it out that he is in possession of only building No. BP

I/497-A, that he has no other building in his possession or enjoyment.

We are not concerned about it. The inconsistency in the documents of

the prosecution is highlighted to say that the final report and the

documents produced by the prosecution cannot go together. There is

yet another incongruity in the case which also is not supporting the

version of the prosecution. The oral testimony of PW1 Sub Inspector

indicates that what he had searched is a concrete building, whereas the

Ext.P9 ownership certificate indicates that it is a tiled house. This

aspect also creates doubts in the credibility of the prosecution case.

16. It is here that the non-production of any material to prove

arrest of the appellant assumes importance. He has stated in answer to

question under Section 313 Cr.P.C. that he was never arrested nor the

contrabands were seized from his possession. But prosecution has not

produced the arrest memo, arrest notice, inspection memo etc., which

are bound to be prepared at the time when a culprit is arrested by the

police. The Prosecutor before the trial court has not produced or

marked the remand report also and in the absence of these material

documents, we cannot assume that the case of the prosecution is true.

17. In other words, merely for the reason that there is dispute

in the house number, the defence version cannot be accepted.

18. For yet another reason, the prosecution is bound to fail. It

has been pointed out that the bulk of items, leaving samples collected

from the spot were dealt with under Section 53A of the Act; to prove

the same Ext. P6 photograph is also produced. But Ext.P7 Inventory

is seen prepared by the Sub Inspector, which is bad in law. Sub-

section (2) of Section 53A of the Act makes it mandatory that such

inventory shall be prepared by the authorised officer. Section 53A

read with Section 67B of the Act indicate that the authorised officer is

an officer not below the rank of Assistant Excise Commissioner. But

here, the inventory was prepared by the Sub Inspector, which is

illegal. Section 53A of the Act is a mandatory requirement and as held

by this Court in Balakrishna Rai's case (supra), such a provision has

to be strictly interpreted and violation of the same is fatal to the

prosecution.

On all these considerations, the prosecution could not prove the

guilt of the accused beyond reasonable doubt. The above noted

inconsistencies and laches crept in the prosecution evidence are

sufficient to doubt the credibility of the prosecution case. Even

otherwise benefit of such laches will invariably go to the accused.

The appellant is entitled to get the benefit of doubt. He is found not

guilty and acquitted under Section 386(b)(i) of the Cr.P.C. His bail

bond shall stand cancelled and shall be set at liberty. Fine amount, if

any, realised shall be refunded.

sd/-

K.HARIPAL JUDGE

DCS/07.04.2021