Kerala High Court
Shinoj @ Thomas vs The Sub Inspector Of Police on 29 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
CRL.A.No.1170 OF 2006
AGAINST THE JUDGMENT DATED 15.05.2006 IN S.C.NO.388/2003 OF
THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST
TRACK (ADHOC-I), KOZHIKODE
APPELLANT/ACCUSED NO.1:
SHINOJ @ THOMAS, S/O. JOSEPH
VADAKKEKUTTI HOUSE, KAKKADAMPOYIL P.O.,
KOODARANHI VIA, CALICUT.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
THIRUVAMBADY, KOZHIKODE.
2 STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY SMT. MAYA M.N, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.08.2018, THE COURT ON 29-01-2021 DELIVERED THE FOLLOWING:
Crl.A. No. 1170 of 2006
-:2:-
"C.R."
MARY JOSEPH, J
----------------------------------------------
Crl.Appeal No. 1170 of 2006
-----------------------------------------------
Dated this the 29th day of January, 2021
JUDGMENT
The appeal on hand is directed against judgment dated 15.05.2006
of the Additional District and Sessions Judge, Fast Track (Adhoc I),
Kozhikode (for short, 'the trial court') in S.C. No.388 of 2003.
2. The appellant is the first accused. Altogether 4 accused were
involved in the case. Accused Nos. 2 to 4 were found not guilty by the
trial court and were acquitted. This appellant was found guilty for the
offence punishable under Section 55 (a) of the Abkari Act (for short 'the
Act') and convicted and sentenced to undergo rigorous imprisonment for
three years and to pay a fine of Rs.1,00,000/-(Rupees one lakh only)
and in default of payment of fine to undergo rigorous imprisonment for
six months. Aggrieved by the judgment, the first accused has
approached this Court in the captioned appeal seeking to reverse the
same.
3. Before adverting to the grounds of challenge, it is relevant to
have a brief discussion about the facts of the case :
On 18.04.2001, the Sub Inspector of Police, Thiruvambadi, based
on a reliable information obtained by him that someone is transporting
Crl.A. No. 1170 of 2006
Indian Made Foreign Liquor from Mahe to Kerala, after transpiring the
said information to the Circle Inspector of Police, Thamarassery and as
directed by him, proceeded to Thottathilkadavu bridge to inspect the
vehicles passing through. A jeep bearing Registration No. KL-13/A 5194
was found coming from Omassery area and it was intercepted near
Thottathilkadavu bridge. The appellant was found driving the jeep and
accused Nos. 2 to 4 were sitting in the front seat with him. On
examination of the vehicle, nine cardboard boxes covered with black
plastic covers were found kept underneath the seat of the jeep in the
backside platform. The packets were examined and 24 bottles each
containing 375 ml of Indian Made Foreign Liquor of different brands were
detected. The accused were arrested then and there. The contraband
articles were seized after drawing samples therefrom. A seizure mahazar
was also prepared. Thereafter, the accused and the properties seized
from the spot were brought to Thiruvambadi Police Station and Crime
No.38 of 2001 was registered. The investigation was pursued with and
on concluding it, a final report was prepared and laid before Judicial First
Class Magistrate Court-II, Thamarassery. The final report was received
by the Magistrate and by proceedings initiated as C.P No.29 of 2003,
committed the same to Court of Sessions, Kozhikode, wherefrom, it was
made over to the trial court, for trial and disposal.
4. After holding preliminary hearing, charge was framed
against all accused for commission of an offence punishable under
Crl.A. No. 1170 of 2006
Section 55(a) of the Act. The charge was read over and explained to
each of the accused. They pleaded not guilty and faced trial.
5. On the side of the prosecution, witnesses were examined as
PWs. 1 to 6 and documents were marked in evidence as Exts.P1 to P9.
The properties seized and produced before the court were marked as
MO1 series to MO3 series. On closure of the prosecution evidence, each
of the accused were questioned under Section 313 (1) (b) Cr.P.C. The
incriminating circumstances brought in evidence by the prosecution were
put to the accused and each of them denied those. Accused No.1 had
filed an elaborate written statement in addition. Accused Nos. 2 to 4 had
pleaded innocence and false implication in addition. Accused No.3 has
stated precisely that one of the passengers in the jeep had fled off on
watching the police officers proceeding towards the vehicle. Grounds
having not been made out from the evidence adduced by the
prosecution, to record an order of acquittal, the accused were asked to
enter on their defence. Accordingly, two witnesses were examined by
the accused as DW1 and DW2.
6. On appreciation of the evidence available in toto, and upon
evaluating the arguments respectively put forth by the learned
Public Prosecutor as well as the learned counsel representing each of
the accused, the trial court found the first accused guilty of the offence
punishable under Section 55(a) of the Act. The court found accused
Nos. 2 to 4 not guilty of that offence and acquitted them. The first
Crl.A. No. 1170 of 2006
accused who was convicted and sentenced as aforesaid, being aggrieved,
has approached this court in the captioned appeal.
7. Shri. T.G Rajendran, the learned counsel and
Smt.Maya M.N, the learned Public Prosecutor advanced arguments
respectively on behalf of the accused and the prosecution.
8. According to Sri. T.G. Rajendran, the learned counsel for the
appellant, virtually, four persons were chargesheeted by Thiruvambadi
Police and the appellant herein is the first among them. According to
him, as per the allegations of the prosecution in the Final Report
accused, four in numbers, together were found transporting Indian Made
Foreign Liquor in nine cartons in a jeep bearing Registration No.KL-13/A
5194. According to him, alleging that all four of them were possessing
and transporting the contraband in the jeep together, based on the
charge framed and trial held against them jointly, one alone was
convicted and others were acquitted without any cogent reasons.
9. The learned counsel has also invited this Court's attention to
the answers tendered by the accused while being questioned under
Section 313(1)(b) Cr.P.C to impress that a question on conscious
possession of the liquor loaded in the vehicle was not put to him. The
learned counsel has relied on Avtar Singh and others v. State of
Punjab [AIR 2002 SC 3343], to rest his contention that any of the
incriminating circumstances brought in evidence by the prosecution
when omitted to put to the accused during examination under Section
Crl.A. No. 1170 of 2006
313 (1)(b) Cr.P.C, that by itself will form a good ground to view the trial
as vitiated. According to him, on a scrutiny of the questions put to the
accused during examination under Section 313(1)(b) Cr.P.C, a question
about his conscious possession of the liquor was not found put to him
and therefore, as held in Avtar Singh's case (Supra), the trial held
against him will lost it's fairness and in that context the prosecution
cannot raise a claim that it's case is proved beyond any reasonable
doubt.
10. Drawing the Court's attention to the versions of two
witnesses summoned and examined as DW1 and DW2, it is pointed out
by the learned counsel that the persons actually responsible for loading
the liquor on board the vehicle were not apprehended and the appellant
was falsely implicated.
11. Lastly, it was urged by the learned counsel that the
allegations in the charge framed by the court against the accused are
insufficient to attract the ingredients of the offence under Section 55(a)
of the Act. He has cited Binesh V. State of Kerala [2018 (1) KLT 747]
to support his contention that the allegations levelled by the prosecution
in the final report and associated materials, if will not suffice to frame a
charge against the accused for the offence for which he was
chargesheeted by the police, the court in seizin of it, while framing
charges shall not supply the necessary inputs on its own, so as to make
the offence attracted. On the basis of the contentions as stated above,
Crl.A. No. 1170 of 2006
the learned counsel has urged this court to appreciate the evidence of
the prosecution in it's correct perspective to find out the infirmities
involved in the impugned judgment and to correct those in interference.
12. Per contra, the learned public prosecutor has taken the stand
that there was correct and proper appreciation of evidence by the trial
court and the judgment under challenge only deserves to be maintained
after discarding the untenable contentions now raised from the
appellant's side.
13. A scrutiny of the evidence is called for in that backdrop and
is done. CW1, who detected the offence and had been instrumental for
holding the search and seizure of the contraband was examined as PW1.
Undoubtedly he had managed to depose strictly subscribing the case of
the prosecution. He has categorically stated that the legal formalities
demanded by the Act in the context of the case are complied with.
According to him, a Head Constable and Sub Inspector attached to
Thiruvambadi Police Station had accompanied him to the spot. The
prosecution had examined them as PWs 2 and 4 and their stand was also
affirmative as far as compliance of formalities are concerned. Material
inconsistencies were not noticed in their versions, rather those
corroborate. Therefore, trial court cannot be found fault with in relying
on their versions to hold that detection, search, seizure and sampling are
established. PW3, the sole independent witness turned hostile to the
prosecution by deposing against the true state of affairs. PW5 is the ASI
Crl.A. No. 1170 of 2006
of Police, Thiruvambadi Police Station who conducted investigation in the
case and PW6 is the Sub Inspector of that Police Station who laid the
final report before the court chargesheeting the accused. All the official
witnesses maintained their loyalty to the prosecution case during trial.
14. As per the prosecution case accused four in numbers were
involved in the transportation of liquor in a Jeep bearing Registration
No.KL-13/A 5194. According to them, accused No.1 was driving the Jeep
and accused 2 to 4 were sitting in the front seat along with him. The
nine cardboard boxes covered with black plastic covers were found kept
underneath the seat in the back platform of the jeep. Since the
contraband was not found possessed by any of the accused, the
prosecution is bound to establish who actually was in conscious
possession of it, either all of them together or accused No.1 alone. The
versions tendered by the official witnesses formed the very basis for the
prosecution in it's venture to establish the case. None of them have
deposed about conscious possession of the liquor by any of the four
accused. The trial court has found from the evidence seized by it during
trial that the 1st accused was driving the Jeep and accused 2 to 4 had
boarded the Jeep as passengers from Thamarassery to Kakkadampoyil.
The prosecution though examined PWs 1 to 6, none of them cared to
tender evidence that accused 2 to 4 were occupying the vehicle to travel
as passengers. They only say that among the four men found inside the
vehicle at the time of interception by the police, one was driving the
Crl.A. No. 1170 of 2006
vehicle and the other three were sitting in the front seat with the driver.
PW1 and PW2 were cited to speak that the detection, search, seizure and
sampling of the liquor, preparation of seizure mahazar and arrest of the
accused from the spot were done in strict compliance of the formalities.
They had played their role well by deposing so in corroborative terms.
PW3, though cited as an independent witness opted to depose against
the prosecution case and her version turned as of no use to the
prosecution in their venture to establish it's case. PW4 and PW5 have
played their role in the investigation process and PW6, in the matter of
verification of materials and laying of final report before the court.
15. It is discerned from a scrutiny of the versions of the above
witnesses that none of them have stated that the accused were holding
the contraband in their conscious possession. Each of the accused were
questioned under Section 313(1)(b) Cr.P.C with reference to the
incriminating circumstances brought in evidence against them. It is
found that a question with reference to conscious possession was not
put to any of the accused by the trial court, for want of evidence in that
regard.
16. Section 64 of the Act is relevant in the context. It enables
the court to draw presumption as to commission of offences in certain
cases coming under the Act. The provision takes in Section 55 of the Act
and it says that a presumption is liable to be drawn against the accused,
if he is unable to account for the possession of the contraband. It is
Crl.A. No. 1170 of 2006
indicated from the words, "it shall be presumed until the contrary is
proved" that the presumption of commission of offence by the person
against whom it was alleged is a rebuttable one and the onus is on the
person charged and tried with for the offence, to adduce satisfactory
evidence to account for the possession of the contraband found as
transported in the vehicle. Therefore, even though evidence on conscious
possession is not forthcoming, in view of the presumption under Section
64 of the Act, each of the accused ought to have been questioned by
the trial court with reference to that.
17. Evidently, a question regarding conscious possession was not
put to any of the accused by the trial court, while being examined under
Section 313(1)(b) Cr.P.C. In view of the statutory presumption, the
prosecution ought to have put such an incriminating circumstance to
each of the accused so as to enable them to account for their possession
of it satisfactorily, or to prove on the contrary.
18. All questions having incriminating flavour put to accused 1 to
4, were denied by each of them. Accused 2 to 4 have stated that they
had boarded the vehicle to travel as passengers and therefore their
implication in the offence is false. The first accused in the statement filed
additionally has stated that accused 2 to 4 had boarded the vehicle as
passengers and therefore, were totally unrelated to the contraband.
19. Though questions with reference to conscious possession
were not put to, the first accused had taken the burden to explain that
Crl.A. No. 1170 of 2006
accused 2 to 4 were passengers in the Jeep driven by him and have no
relation to the contraband seized from the vehicle.
20. The dictum in Avtar Singh (supra) says that
non-examination of the accused with reference to a material factum of
incriminating nature would vitiate the trial held against him. In that
context, it is incumbent upon this Court to see whether the trial held
against the accused is vitiated or not.
21. In the case referred to supra, the Apex court was dealing
with a context in which bags containing poppy husk were seized from a
vehicle which was driven by one of the accused and two of them were
sitting over some bags boarded therein. As per the prosecution case, two
more occupants were also there but they fled off while the vehicle was
intercepted. The accused were not questioned under Section 313 Cr.P.C
about their possession of poppy husk bags. It was held by the Apex
Court in the context that, it cannot be taken as established on the basis
of the evidence on record that the accused were in possession of poppy
husk bags. Therefore the conviction of the accused by the trial court
that stands confirmed by the appellate court was set aside. To have a
better understanding, paragraph 6 of the judgment (supra) is extracted
hereunder :
"6. xx xx xx The word 'possession' no doubt has
different shades of meaning and it is quite elastic in its
connotation. Possession and ownership need not always go
together but the minimum requisite element which has to be
Crl.A. No. 1170 of 2006
satisfied is custody or control over the goods. Can it be said, on
the basis of the evidence available on record, that the three
appellants- one of whom was driving the vehicle and other two
sitting on the bags, were having such custody or control? It is
difficult to reach such conclusion beyond reasonable doubt. It
transpires from evidence that the appellants were not the only
occupants of the vehicle. One of the persons who was sitting in
the cabin and another person sitting at the back of the truck
made themselves scarce after seeing the police and the
prosecution could not establish their identity. It is quite probable
that one of them could be the custodian of goods whether or not
he was the proprietor. The persons who were merely sitting on the
bags, in the absence of proof of anything more, cannot be
presumed to be in possession of the goods. For instance, if they
are labourers engaged merely for loading and unloading purposes
and there is nothing to show that the goods were at least in their
temporary custody, conviction under S.15 may not be warranted.
At best, they may be abettors, but, there is no such charge here.
True, their silence and failure to explain the circumstances in
which they were traveling in the vehicle at the odd hours, is one
strong circumstance that can be put against them. A case of
drawing presumption under S.114 of the Evidence Act could
perhaps be made out then to prove the possession of the
accused, but, the fact remains that in the course of examination
under S.313 Cr.P.C, not even a question was asked that they were
the persons in possession of poppy husk placed in the vehicle. The
only question put to them was that as per the prosecution
evidence, they were sitting on the bags of poppy husk. Strangely
enough, even the driver was questioned on the same lines. The
object of examination under S.313, it is well known is to afford an
opportunity to the accused to explain the circumstances appearing
in the evidence against him. It is unfortunate that no question
was asked about the possession of goods. Having regard to the
Crl.A. No. 1170 of 2006
charge of which appellants were accused, the failure to elicit their
answer on such a crucial aspect as possession, is quite significant.
In this state of things, it is not proper to raise a presumption
under S.114 of Evidence Act nor is it safe to conclude that the
prosecution established beyond reasonable doubt that the
appellants were in possession of poppy husk which was being
carried by the vehicle. The High Court resorted to the
presumption under S.35 which relates to culpable state of mind,
without considering the aspect of possession. The trial court
invoked the presumption under S.54 of the Act without addressing
itself to the question of possession. The approach of both the
courts is erroneous in law. Both the courts rested their conclusion
on the fact that the accused failed to give satisfactory explanation
for traveling in the vehicle containing poppy husk at an odd hour.
But, the other relevant aspects pointed out above were neither
adverted to nor taken into account by the trial court and the High
Court. Non-application of mind to the material factors has thus
vitiated the judgment under appeal".
22. A scrutiny of the record pertaining to examination of the
accused under Section 313(1)(b) Cr.P.C, reveals that accused Nos. 2 to 4
have taken a stand of false implication. Apart from the plea of innocence,
accused No.1 has taken a stand that accused Nos.2 to 4 were only
passengers in the vehicle and have no relation to the contraband seized
from the vehicle. It is also noticed that the stand as above was taken by
the accused not as explanation to any queries put to account for their
conscious possession, but generally.
Section 313 (1)(b)Cr.P.C is worthy to quote hereunder;
"313. Power to examine the accused.-
Crl.A. No. 1170 of 2006
(1) In every inquiry or trial, for the purpose of enabling
the accused personally to explain any circumstances
appearing in the evidence against him, the court-
(a) xxxx
(b) shall, after the witnesses for the prosecution
have been examined and before he is called on for his
defence, question him generally on the case:
PROVIDED that in a summons-case, where the Court has
dispensed with the personal attendance of the accused, it
may also dispense with his examination under clause (b)"
23. The purpose of examination of accused under Section 313
Cr.P.C is to enable him personally to explain the circumstances appearing
in evidence against him. Therefore, incriminating circumstances brought
in evidence against the accused during trial alone can be put to the
accused. It is pertinent to note that none of the witnesses examined by
the prosecution has spoken about conscious possession of the
contraband by any of the accused. The contraband was found kept under
the back seat of the jeep and having been seized therefrom, none of the
accused who were sitting in the cabin of the vehicle alongwith the driver,
can be said to be in conscious possession of it, especially when evidence
in that regard is not forthcoming.
24. Though the first accused was not put a question regarding
conscious possession of the contraband loaded in the vehicle, he on his
own, attempted to explain it by filing a written statement additionally
and by examining two witnesses as DW1 and DW2.
Crl.A. No. 1170 of 2006
25. In the additional written statement, he has stated that
accused 2 to 4 being passengers in the Jeep have no connection with the
contraband seized from the vehicle. He has also denied his connection
with the contraband. However, the contraband was evidenced as seized
from the vehicle. In the above scenario, being the driver of the vehicle
and custodian of it at the relevant point of time, he will have to account
for it satisfactorily.
26. Questioning of the accused under Section 313(1)(b) Cr.P.C is
mandatory, its object being to afford an opportunity to the accused to
explain the incriminating circumstances appearing in evidence against
him, personally. It embodies in it 'Audi Alteram Partem', a fundamental
principle of Natural Justice.
27. In the case on hand, the trial court failed to put a question
on conscious possession of the contraband to the accused while being
examined under Section 313(1)(b) Cr.P.C. But the trial court permitted
the accused to file an additional written statement and received that on
record. In the written statement, the 1st accused made an attempt to
convince the court that himself and other accused were totally unrelated
to the incident and falsely implicated. From the above stand taken by
the 1st accused, it cannot be said that he has successfully accounted for
the seizure of the contraband from the vehicle.
28. In the above circumstances, though the 1 st accused was not
questioned on his conscious possession of the contraband while being
Crl.A. No. 1170 of 2006
examined under Section 313(1)(b) Cr.P.C, the additional written
statement filed by him was received by the Trial Court. In the additional
statement, the 1st accused volunteered to state that accused Nos. 2 to 4
being the passengers in the vehicle are unrelated to the contraband
found in the vehicle and seized therefrom. In that context, the accused
who had availed an opportunity to file an additional written statement
explaining the circumstances cannot now turn around to contend that
the trial faced by him lost it's fairness for non-questioning him
specifically on conscious possession. Accused in the circumstances can
only be taken to have been heard by the court on his conscious
possession of the contraband which is a very relevant and material
aspect to drive the court to arrive at a finding of guilt of the accused for
commission of an offence under Section 55(a) of the Act. Therefore, the
non-examination of the accused under Section 313 (1)(b) Cr.P.C in the
case on hand cannot be said to be fatal to the prosecution case. The
factual situation in the case on hand is differentiated from those in
Avtar's case (supra) in the above manner and therefore, failure to
question the accused specifically on his conscious possession under
Section 313 (1)(b) Cr.P.C cannot be taken to have a fatal impact on the
prosecution case on hand.
29. Then the question arises for consideration is whether the
accused was successful in accounting for the possession of the
contraband. Only four passengers were available in the vehicle and the
Crl.A. No. 1170 of 2006
1st accused has stated that accused 2 to 4 were occupants in the vehicle
as passengers having no connection with the contraband. If accused 2 to
4 were stated by the 1st accused as unaware of and unrelated to the
contraband, the vehicle being in his custody at the relevant time, he
ought to have stated something to reasonably account for the availability
of contraband in the vehicle. On the contrary, he had raised a plea of
false implication. In the above backdrop, this Court is convinced that the
accused failed to account for the contraband seized from the vehicle, of
which he was the driver and the custodian, for the time being.
30. The failure of the accused to account for the contraband on
board the vehicle undoubtedly is a sufficient ground for drawing the
presumption under Section 64 of the Act that he has committed the
offence charged against him under Section 55 (a) of the Act.
31. The presumption under Section 64 is a rebuttable one and in
an attempt to rebut it, the accused had examined DW1 and DW2.
Therefore, a scrutiny of the evidence tendered by DW1 and DW2 is
required to see whether the accused was successful in rebutting the
presumption.
32. DW1 is one Mr. Hassan, who was working in a hotel at the
relevant time. According to him, he had witnessed the seizure of the
contraband from the accused, 4 or 5 years back. According to him, he
could not recollect the month and date of occurrence but, has stated
that the incident was occurred at Ambalappara Junction. According to
Crl.A. No. 1170 of 2006
him, on his way back home after taking bath from a river, he found some
officials engaged in checking vehicles passing through Ambalappara
junction. At that point of time, a jeep that reached there from
Thottathilkadavu Bhagam was intercepted by the police. Four persons
were found sitting in the front seat of the jeep and one at the back seat.
When the vehicle was stopped, a person sitting in the back seat stepped
down from the vehicle and rushed away. Four men sitting in the front
seat were arrested and taken to the police station. Admittedly, signature
was affixed by him in Ext.P3 Seizure Mahazar. In cross examination, he
has stated that by the time he reached the spot, all four of them had
stepped down from the vehicle. The version strictly contradicts with the
one spoken in examination in chief that he had witnessed the
interception of the vehicle, seating of four men in the front seat and
fleeing of one among them from the vehicle etc. The discrepancy being
material, credence of DW1 is only to be doubted.
33. DW2, examined by the defence is one Mr.Jibin, a native of
Kakkadampoyil and an agriculturist. According to him, he had
acquaintance with the first accused Shinoj @ Thomas, who is a jeep
driver by profession and he used to hire the jeep driven by him for
transporting plantains to a shop namely 'Haritha Stores' at
Thamarassery. It was stated that the vehicle belongs to the first
accused was hired by him on some day, 4-5 years back to transport
plantains to the shop namely Haritha Stores. According to him, he did
Crl.A. No. 1170 of 2006
not return in the vehicle after unloading the bunches at the shop and
found another man boarding the jeep therefrom with some packets of
tiles. In cross examination, he has stated that accused Nos. 2 to 4 were
not available in the jeep at the relevant time.
34. The version of DW2 was that he had travelled in the vehicle
on the alleged day, accompanying the bunches of plantains and after
unloading those at the shop, did not return. The version of the 1 st
accused while being examined under Section 313 (1)(b) Cr.P.C. is crucial
in that context. The incriminating circumstances brought against him in
evidence when put to him were denied by him and a written statement
was filed in addition. It was stated that accused Nos. 2 to 4 were
passengers in the vehicle driven by him on the alleged day and they
have no connection with the contraband seized from the vehicle.
According to him, one man had also boarded the vehicle from
Thamarassery with nine black card board packets containing tile pieces.
According to the 1st accused when the vehicle was intercepted by the
police, that man stepped down and fled off. The attempt of the accused
while stating so is to attribute the role of conscious possessor of the
contraband upon the man who according to him had fled therefrom.
35. The oral evidence tendered by DW2 when read with that of
the first accused during examination under Section 313 Cr.P.C, it is
discerned that accused Nos. 2 to 4 had boarded the vehicle only to
travel. According to DW2 accused Nos. 2 to 4 were not inside the jeep
Crl.A. No. 1170 of 2006
when it returned from Thamarassery. But, the specific case of the 2 nd
accused was that accused Nos.2 to 4 were inside the vehicle at the
relevant time when it was intercepted by the police and the contraband
was seized. As per the prosecution case also, the driver and three
passengers (i.e. A1 to A4) were inside the vehicle when it was
intercepted and the contraband was seized. Therefore, DW2 has
narrated a story totally different from that spoken by the 1 st accused
while being questioned under Section 313(1)(b) Cr.P.C. In that scenario
the version of DW2 is only to be viewed with suspicion. Therefore, there
cannot be any doubt about the failure of the accused to rebut the
presumption of guilt against them.
36. The learned counsel has also questioned the legality and
propriety of the charge framed by the court based on which the trial
against the accused was held. Reliance was placed on Binesh's case
(supra) wherein this Court has held that conviction which is the outcome
of a trial held on the basis of an improperly framed charge is illegal and
the prosecution is not justified in raising a claim in such circumstances
that the trial held against is a fair one.
37. The offence alleged against the accused in the case on hand
being one punishable under Section 55(a) of the Act, the ingredients that
constitute the offence must find it's place in the charge framed by the
court.
Crl.A. No. 1170 of 2006
38. In Mohanan V. State of Kerala [2007 (1) KLT 845], a
Division Bench of this Court had held that Section 55(a) is attracted only
when persons involved in illegal import or transportation of liquor or in
possession of it while being illegally imported. Therefore, for an offence
under Section 55(a) of the Act to sustain in the case on hand, an
accusation that the accused was in possession of liquor during the course
of illegal import must be there in the charge. The charge framed by the
court is required to be appreciated in that backdrop and is extracted
hereunder:-.
"18-04-2001 നു 18.15 മണണികക്ക് നണിങ്ങൾ ഒതതത്തൊരുമണിച്ചു KL 13/A.5194 നമ്പർ
ജജീപണിൽ തണിരുവമ്പത്തൊടണി -ഓമശശ്ശേരണി പബണികക്ക് ശറത്തൊഡണിൽ ശതത്തൊട്ടതണിൽ കടവക്ക്
പത്തൊലതണിൽ നണിനക്ക് സുമത്തൊർ 150 മജീറ്റർ കണിഴകക്ക് മത്തൊറണി വടക്കു ഭത്തൊഗശതകക്ക്
ശപത്തൊകുന അമ്പലലം ശറത്തൊഡക്ക് ജലംഗക്ക്ഗ്ഷനണിൽ കൂതട 216 കുപണി വണിശദേശ മദേദലം
കടതണി തകത്തൊണ്ടു ശപത്തൊകുനതത്തൊയണി ശപത്തൊസണികക്യുഗ്ഷൻ ഭത്തൊഗലം ശരഖകളണിൽ
നണിനലം പഥമ ദൃഷദത്തൊ തവളണിവത്തൊയണിരണിക്കുന. "
39. The only accusation against the accused was that they were
engaged in transporting foreign liquor in a Jeep bearing Registration
No.KL 13/A-5194 through Ambalam road junction. The charge does not
incorporate in it ingredients to constitute the offences, as settled by the
Division Bench in Mohanan's case (supra).
40. In that context, this Court has no hesitation to hold that the
trial faced by the accused is undoubtedly an unfair one. Therefore, the
finding of guilt of the accused under Section 55(a) of the Act, order of
Crl.A. No. 1170 of 2006
conviction passed and sentence imposed will not sustain in the eye of
law and are only to be reversed.
In the result, the appeal succeeds and is allowed. The judgment
under challenge only to the extent it convicts the 1 st accused for an
offence under Section 55 (a) of the Act and sentences him is set aside.
The bail bond executed by the appellant/ 1st accused is cancelled and he
is set at liberty forthwith.
Sd/-
MARY JOSEPH
JUDGE
NAB/ttb
