Kerala High Court
Rajesh Kumar vs State Of Kerala on 7 February, 2025
Crl.Appeal No.12 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
CRL.A NO. 12 OF 2014
AGAINST THE JUDGMENT DATED 12.12.2013 IN SC NO.396 OF
2008 ON THE FILE OF THE COURT OF SESSION-V,
THIRUVANANTHAPURAM.
APPELLANT/1ST ACCUSED:
RAJESH KUMAR
S/O.CHANDRAN NAIR,
PAMAVILASOM KODANOOR ROADARIKATHU,
KODANOOR DESOM,
MARANALLOOR VILLAGE, NEYYATTINKARA,
THIRUVANANTHAPURAM TALUK.
BY ADV SRI.M.R.SARIN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.02.2025, THE COURT ON 07.02.2025 DELIVERED THE
FOLLOWING:
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C.S.SUDHA, J.
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Crl.Appeal No.12 of 2014
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Dated this the 7th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, who is the first accused in S.C.No.396/2008 on the file
of the Court of Session, Thiruvananthapuram challenges the
conviction entered and sentence passed against him for the
offence punishable under Section 8(1) and (2) of the Kerala
Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 17/12/2006 at
about 03:30 p.m., PW1 and party were patrolling through
Aruvikkara-Ambalathinkara road and when they reached near the
house of one Vijayakumaran Nair, the first accused was found
coming with a plastic jerry-can, which on inspection was found to
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contain 5 litres of illicit arrack. On questioning the first accused,
he stated that he along with his brother, the second accused, are
distilling arrack near the culvert situated about 100 metres away
from the place of occurrence. PW1 and party along with the first
accused proceeded to the said place, where they found vessels,
gas stove etc. for the purpose of distillation. Hence, as per the
final report, the first accused along with the second accused were
alleged to have committed the offences punishable under Section
8(1) read with Section (2), Section 12(1) and Section 55(g) of the
Act.
3. Crime no.93/2006, Excise Range, Kattakkada,
that is, Ext.P5 crime and occurrence report was registered by
PW1. PW1, the detecting officer is also the investigating officer,
who on completion of investigation submitted the final report
alleging the commission of the offences punishable under the
aforementioned sections by accused no.1 and 2.
4. On appearance of the accused persons, the
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jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed
the case to the Court of Session, Thiruvananthapuram. The case
was taken on file as S.C.No.396/2008 and thereafter made over to
the Additional District and Sessions Judge-V,
Thiruvananthapuram for trial and disposal.
5. On appearance of the accused persons, the trial
court framed a charge for the offences punishable under Section
55(g) and Section 8(1) and (2) of the Act, which was read over
and explained to the accused persons to which they pleaded not
guilty.
6. On behalf of the prosecution PW1 to PW6 were
examined and Exts.P1 to P11 and MO.1 to MO.6 were marked.
After the close of the prosecution evidence, the accused persons
were questioned under Section 313(1)(b) Cr.P.C. with regard to
the incriminating circumstances appearing against them in the
evidence of the prosecution. The accused denied all those
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circumstances and maintained their innocence.
7. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. No oral or documentary evidence was adduced by the
accused.
8. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment acquitted the second accused under Section
235(1) Cr.P.C. of all the offences alleged against him. However,
the first accused has been found guilty of the offence
contemplated under Section 8(1) and hence has been sentenced to
rigorous imprisonment for one year and to a fine of ₹1,00,000/-
and in default of payment of fine to simple imprisonment for one
month for the offence punishable under Section 8(2) of the Act.
He has been acquitted of the offence punishable under Section
55(g) of the Act. Aggrieved, the first accused has come up in
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appeal.
9. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the first accused/appellant by the trial court are sustainable
or not.
10. Heard both sides.
11. It was submitted by the learned counsel for the
appellant/first accused that the evidence on record is totally
unsatisfactory to find the accused guilty of the offence alleged
against him. Per contra, it was submitted by the learned public
prosecutor that there is sufficient evidence to find accused guilty
of the offence alleged against him.
12. I briefly refer to the evidence on record relied
on by the prosecution in support of the case. PW1, the detecting
officer deposed that on 17/12/2006 he was patrolling through
Aruvikkara - Ambalathinkara road and when he reached near the
house of one Vijayakumaran Nair, he found the first accused
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coming with a jerry-can in his hand. On suspicion, he intercepted
the accused and examined the jerry-can in his possession. The
can was found to contain 5 litres of arrack. PW1 questioned the
first accused and then the latter told him that he along with his
brother, namely, the second accused, together had distilled the
arrack and that the distilling apparatus were kept about 100
metres away from the place of occurrence under a culvert.
Therefore, he along with his team went with the accused to the
said place, where they found gas stove, pots, vessels etc. which
were used for distilling arrack. He arrested the first accused and
based on the information given by the first accused and also
included the second accused in the crime. On seizure of the
contraband article, he took 180 ml. of arrack as sample. The
sample bottle and the can containing the remaining arrack were
closed, sealed and labelled. He registered the crime, that is,
Ext.P5 crime and occurrence report. The contraband articles and
the accused were produced before the court on the same day. The
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various utensils that were used for distilling the arrack have been
marked as MO.1 to MO.6. The jerry-can found in the possession
of the accused is marked as MO.1. The contraband articles were
produced before the court as per Ext.P4 property list. His
investigation revealed that the second accused was involved in
several other crimes also. Hence, he filed Ext.P6 report before
the court regarding the same. He also submitted Ext.P7
forwarding note requesting the court for sending the sample for
chemical examination. Ext.P8 is the chemical analysis report
obtained after examination of the sample.
12.1. PW2 and PW3, the independent witnesses
admitted that they are attestors to Ext.P1 mahazar. However, they
denied having seen the incident or having stated to the police that
they had seen the incident.
12.2. PW6, Guard, Excise Range, Kattakkada,
deposed that on 17/12/2006, he had produced the contraband
articles before the court.
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12.3. PW5, the Property Section Clerk, JFCM,
Kattakkada, deposed that on 17/12/2006 8 items had been
produced before the court, which were received and necessary
entries made in the property register. The extract of the register
has been marked as Ext.P11. He deposed that it was Excise
Guard Jose Raj (PW6) who had produced the articles before the
court. Item no.2 in the property list, which is the bottle containing
the sample was sent on 21/03/2007 through Excise Guard Shahul
Hameed (PW4) for chemical examination. The other items were
kept in safe custody. The material objects produced were found
in a sealed and labelled condition.
12.4. PW4, Excise Guard, Kattakkada Range,
deposed that on 21/03/2007, he had received the sample bottle
from the court and had submitted the same before the laboratory
for chemical examination. When he received the sample bottle,
the seal and the label on it were intact.
13. There is only the testimony of PW1 supported
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by the evidence of PW4, PW5 and PW6 to prove the prosecution
case. Now the question is whether the testimony of these official
witnesses is sufficient to find the accused guilty of the offence
alleged against him. PW1, the detecting officer is the
investigating officer as well. PW1 deposed that on seizure of the
contraband, he had drawn necessary sample from the same and
thereafter he had closed, sealed and labelled the sample bottle as
well as the can containing the remaining arrack. He had also
affixed his personal seal, that is, KSB on them. In Ext.P1
mahazar, the case of PW1 is that he had affixed his personal seal
that is, KSBN on the sample bottle and the can containing the
remaining arrack. Ext.P7 forwarding note does contain the
specimen of the seal. But this Court is unable to make out what is
written on the seal. The testimony of PW1 itself raises doubts
because the seal stated to have been affixed on the sample bottle
and the can containing the remaining sample does not tally with
the description of the specimen seal given in Ext.P1 mahazar.
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This raises doubts regarding the prosecution case and hence I find
that the accused is entitled to the benefit of doubt.
In the result, the appeal is allowed and the conviction and
sentence imposed against the appellant/first accused by the trial
court for the offence punishable under Section 8(1) and (2) of the
Act is set aside. The accused is acquitted under Section 235(1)
Cr.P.C. He is set at liberty and his bail bond shall stand
cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
