Kerala High Court
Biju, S/O.Krishnankutty vs State Of Kerala on 29 May, 2024
Crl. Appeal No 2029/2007 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
CRL.A NO. 2029 OF 2007
JUDGMENT DATED 24.09.2007 IN SC NO.263 OF 2006 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP NO.13 OF 2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, THODUPUZHA
APPELLANT/ACCUSED:
BIJU, S/O.KRISHNANKUTTY
THEKKEDATHU VEETTIL, KOOVAPPURAM KARA, VANNAPPURAM
VILLAGE, THODUPUZHA.
BY ADVS.
SRI.C.M.TOMY
SRI.MATHEW SKARIA
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2024, THE COURT ON
29.05.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No 2029/2007 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 2029 of 2007
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Dated this the 29th day of May, 2024.
JUDGMENT
The appellant is the accused in S.C. No. 263 of 2006 on the file of
the Additional Sessions Judge, Adhoc II Thodupuzha and he is
challenging the conviction and sentence imposed on him for the offence
punishable under Section 55(b) and (g) of the Kerala Abkari Act.
2. As per the impugned judgment dated 24.09.2007, the
appellant/accused was convicted and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,00,000/- and in
default of payment of fine, to undergo rigorous imprisonment for 3
months for the offence under Section 55(b) of the Kerala Abkari Act and
no separate sentence is passed under Section 55(g) of the Kerala Abkari
Act.
3. The prosecution case is that on 19.08.2004, at 4.20 p.m., the
accused was found distilling arrack at a place near the north western
corner of his house at Koovappuram. It is alleged that on seeing the
police party, the accused ran away from the place of occurrence and the
police party, under the leadership of the Sub Inspector of Kaliyar Police
Crl. Appeal No 2029/2007 :3:
Station, seized wash and utensils used for distilling arrack from the place
of occurrence.
4. The trial court, after framing charge, examined PWs 1 to 6 and
marked Exhibits P1 to P8 and MOs 1 to 5 from the side of the
prosecution and from the side of the defence, Exhibits D1 and D2 were
marked.
5. After trial and hearing both sides, the learned Additional
Sessions judge found the accused guilty of the offence punishable under
Section 55(b) and (g) of the Kerala Abkari Act and imposed the sentence
as aforesaid.
6. Heard Sri. Balu Tom representing the learned counsel for the
appellant on record and Sri. Vipin Narayan, the learned Senior Public
Prosecutor.
7. The learned counsel for the appellant argued that the
prosecution has not adduced reliable evidence to prove the identity of
the property from where the contraband items are recovered and there
is also no satisfactory evidence to connect the accused with the property
from where the contraband items are alleged to have recovered. It is
also argued that what is stated in Exhibit P1 mahazar is that the accused
who was standing near the contraband items, ran away on seeing the
police party and there is nothing in Exhibit P1 to show that the accused
Crl. Appeal No 2029/2007 :4:
was handling the contraband items or engaged in distilling the arrack
and therefore, the evidence of PW5, Sub Inspector, before the court that
the accused was seen distilling the arrack at the time of occurrence is
only an exaggeration and therefore, the same cannot be relied upon. It
is also argued that nothing is stated in Exhibit P1 mahazar regarding the
nature of the seal affixed in the samples and that there is also delay in
forwarding and producing the sample in the Chemical Examiner's
Laboratory
8. PWs 1 and 2 are the independent witnesses examined from the
side of the prosecution and they turned hostile to the prosecution and
deposed that they have not witnessed the occurrence.
9. PW3 was the Head Constable who accompanied the Sub
Inspector for the raid and according to PW3, on getting information
about distilling of arrack, they reached near the house of the accused at
4.20 p.m. and in the courtyard on the north western corner of the
house, an aluminum pot is seen placed above 3 hearth stones and on
seeing the police party, the accused ran away through the courtyard on
the north western side. According to PW3, even though they chased the
accused, they were not able to apprehend him.
10. PW5 was the Sub Inspector, who detected the case and
according to PW5, when they reached near the house of the accused, the
Crl. Appeal No 2029/2007 :5:
accused was engaged in distilling the arrack. But, as noticed earlier,
there is nothing in Exhibit P1 mahazar to show that the accused was
engaged in distilling the arrack when the police party reached there. The
relevant portion in Exhibit P1 mahazar is extracted below for convenient
reference:
"വീടിന്റെ പരിസരത്തെത്തിയ സമയം വൈകി. 4.20 മണിക്കു ടി. സിജുവും മറ്റും
കുടുംബയായി താമസിക്കുന്ന തേക്കേടത്തു വീടിന്റെ വടക്കു പടിഞ്ഞാറെ മൂലഭാഗം
ചേർന്ന് അടുപ്പു കൂട്ടി ആയതിൽ തീ പുകയുന്നതായും ആയതിനു മുകളിൽ ഒരു വലിയ
അലുമിനിയകലവും ആയതിനു മുകളിൽ ഒരു അലുമിനിയ ഉരുളിയും കാണുകയും
പോലീസ് പാർട്ടിയെ കണ്ട സമയം ആയതിനു സമീപം നിന്നിരുന്ന ബിജു സ്ഥലത്തു
നിന്നും വീടിന്റെ പടിഞ്ഞാറു വശം മുറ്റംവഴി തെക്കുവശത്തേയ്ക്ക് അതിവേഗതയിൽ
ഓടിപോവുകയും ഉദ്ദേശം 25 മീറ്ററോളം ടിയാനെ പിന്തുട ന്നശേഷം ടിയാനെ കിട്ടാ
സാധ്യതയില്ല എന്നു കാണുകയാൽ തിരികെ വന്നു."
11. PW4 is the Village Officer who issued Exhibit P3 certificate
stating that the house in which Krishnankutty and his son Biju @ Mala
are residing with their family at Koovappuram and the north western
part of the courtyard of the said house are in the possession of the said
Krishnankutty. It is not disputed that the accused is the son of
Krishnankutty mentioned in Exhibit P3 certificate. However, it is
pertinent to note that PW4, Village Officer, has not mentioned the block
number and survey number of the property where the said house is
situated. There is nothing in the evidence of PW4 to show that Exhibit P3
certificate is issued on the basis of the survey records in the village office
and therefore, I find force in the argument of the learned counsel for the
Crl. Appeal No 2029/2007 :6:
appellant that it is not possible to establish the identity of the property
on the basis of of Exhibit P3 certificate.
12. When the learned counsel for the accused has made a specific
suggestion to PW4 that the accused and his family are residing in the
property comprised in Block No. 3, Survey No.1428/1A, the witness
stated that the same is not known to him.
13. It is well settled that only because an article is found kept or
stored in a building or house, the owner or occupier of such building
cannot be said to have stored the article, nor can it be said that he is in
possession of such article, as held by this Court in Ravi v. State of
Kerala [2011 (3) KLT 627]. In Santhosh v. State of Kerala [2021 (5)
KHC 214], it was held by this Court that unless the person who is said to
be in possession of an article is having dominion or control over it, even
if he is in physical possession of the same, that possession will not
become constructive possession.
14. In this case, there is no satisfactory evidence to show that the
accused was in ownership or possession of the property from where the
contraband items are alleged to be recovered. There is also no
satisfactory evidence to show that the accused was in physical
possession of the contraband items at the time of occurrence and
therefore, I find that the appellant/accused is entitled to the benefit of
Crl. Appeal No 2029/2007 :7:
reasonable doubt and as such, the conviction and sentence imposed by
the trial court is liable to be set aside.
In the result, this appeal is allowed and the conviction and
sentence imposed by the trial court against the appellant/accused are
hereby set aside and he is acquitted of the offence punishable under
Section 55(b) and (g) of the Kerala Abkari Act. The bail bond executed
by the appellant/accused shall stand cancelled and he is set at liberty
forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
