Ramar vs State Of Kerala
2021 Latest Caselaw 23 Ker

Crl.Rev.Pet.No.4018 OF 2009
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            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
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                                   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

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

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

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

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

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

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

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