Changanampatta Rajan vs The Excise Inspector
2021 Latest Caselaw 6332 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                          CRL.A.No.985 OF 2006

 AGAINST THE ORDER/JUDGMENT IN SC 145/2005 OF ADDITIONAL SESSIONS
                    COURT (ADHOC)III, MANJERI

AGAINST THE ORDER/JUDGMENT IN CP 12/2005 OF JUDICIAL MAGISTRATE OF
                  FIRST CLASS -I, PERINTHALMANNA


APPELLANT/S:

                CHANGANAMPATTA RAJAN
                S/O.KUNHUKUTTAN, ERANAKULAM AMSOM,, KUNNAKKAVU DESOM,
                PERINTHALMANNA TALUK.

                BY ADVS.
                SRI.K.M.SATHYANATHA MENON
                SRI.M.SHAJU PURUSHOTHAMAN

RESPONDENT/S:

      1         THE EXCISE INSPECTOR, PERINTHALMANNA
                EXCISE RANGE OFFICE, PERINTHALMANNA.

      2         THE STATE OF KERALA REPRESENTED
                BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, HIGH
                COURT BUILDINGS, HIGH COURT ROAD,, ERNAKULAM, COCHIN-
                682 031.

                R1-2 BY PUBLIC PROSECUTOR

OTHER PRESENT:

                SMT.MAYA.M.N., PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No. 985 of 2006                      2




                             P.V.KUNHIKRISHNAN, J
                        ------------------------------------------
                          Crl.Appeal No. 985 of 2006
                          --------------------------------------
                    Dated this the 22nd day of February, 2021


                                          JUDGMENT

The appellant is the accused in Sessions case No.145/2005 on

the file of the Addl.Sessions Judge, Fast track Court No. III (Adhoc)-

Manjeri. The above case is charge sheeted by the Circle Inspector of

Excise, Perinthalmanna against the appellant alleging offence

punishable under Sec.8(1) of the Abkari Act.

2. The prosecution case is that on 3.9.2003, at about 6.15

p.m. while the Excise Inspector was conducting patrol duty at

Kunnakkavu desom in Elamkulam amsom, he found the accused in the

pathway, which leads to Changanampatta Kunhappan's house

carrying a bag which contain a white can. When he saw the excise

party, he became perplexed. The Excise Inspector and his party

restrained the accused and 2½ litres of arrack was found in the white

can. Therefore, the excise party arrested the accused and hence, the

accused committed the offence.

3. To substantiate the case, the prosecution examined PW1 to

PW5, Exts.P1 to P9 were also marked on the side of the prosecution.

MO1 and MO2 are the material objects. After going through the

evidence and the documents, the trial court found that the accused

committed the offence under Sec. 8(1) of the Abkari Act. The accused

is sentenced to undergo rigorous imprisonment for a period of one

year and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). In

default of payment of fine, the accused is directed to undergo simple

imprisonment for a period of three months. Aggrieved by the

conviction and sentence, this criminal appeal is filed.

4. Heard counsel for the appellant and the Public Prosecutor.

5. The counsel for the appellant submitted that the

prosecution case is unbelievable and there is only the evidence of

PW1 and PW2, the official witnesses. The counsel submitted that here

is a case where the independent witness examined by the prosecution

not only turned hostile, but they denied the signature in Ext.P3

seizure mahazar. Therefore, the counsel submitted that it will go to

the root of the case. The counsel submitted that the entire seizure is

suspicious because, the independent witness denied the signature in

Ext.P3 seizure mahazar. In such circumstances, the evidence of PW1

and PW2 is not believable. The counsel submitted that this is a case in

which the accused is convicted for possessing 1½ litres of arrack.

The counsel submitted that there is no legal evidence to convict the

accused and he may be acquitted giving benefit of doubt.

6. The Public Prosecutor submitted that there is evidence of

PW1 and PW2, the official witnesses. Simply because, the

independent witness turned hostile to the prosecution, the evidence

of official witnesses cannot be ignored by this Court. The Public

Prosecutor submitted that the trial court after scanning the entire

oral and documentary evidence concluded that the appellant/accused

committed the offence. According to the Public Prosecutor, there is

nothing to interfere with the conviction and sentence imposed on the

appellant.

7. The point for consideration in this case is whether the

accused committed the offence under Sec.8(1) and (2) of the Abkari

Act.

8. Altogether, 5 witnesses were examined in this case by the

prosecution. PW1 is the detecting officer and PW2 is the officer who

accompanied PW1. PW3 and PW4 are the alleged independent

witnesses, who witnessed the arrest and seizure. PW5 is the

investigating officer. I perused the evidence of PW1 to PW5. It is true

that PW1 and PW2, the official witnesses deposed in tune with Ext.P3

seizure mahazar. But it is a peculiar case, in which the independent

witnesses not only turned hostile to the prosecution, but they denied

their signature in Ext.P3, seizure mahazar. It is a settled position that

the evidence of official witness cannot be rejected simply because

there is no independent corroboration. As far as abkari case is

concerned, the prosecution has to prove the search, seizure and

arrest. The prosecution is mainly relying Ext.P3 seizure mahazar to

prove the same. According to the prosecution, the search, seizure

and arrest was in the presence of PW3 and PW4. According to the

prosecution, PW3 and PW4 signed in Ext.P3 seizure mahazar. But

PW3 and PW4 deposed before the Court that they have not signed in

Ext.P3 seizure mahazar and there was no such incident. In such

circumstances, it is very difficult to accept the evidence of PW1 and

PW2, who are official witness. PW3 and PW4, the alleged independent

witness deposed that they have not signed in Ext.P3 seizure mahazar.

If that is the case, this Court cannot accept the evidence of PW1 and

PW2 to rely the search, seizure and arrest of the accused. I think in

this case, the appellant is entitled the benefit of doubt.

9. Therefore, this criminal appeal is allowed. Conviction

and sentence imposed on the appellant as per the judgment

dated 31.3.2006 in S.C.No.145/2005 on the file of the Additional

Sessions Judge, Fast Track Court No. III (Adhoc), Manjeri is set

aside. The appellant is set at liberty. The bail bond, if any,

executed by the appellant, is canceled.

sd/-

P.V.KUNHIKRISHNAN JUDGE SKS