Allowed

Suresh Babu v. State of Kerala

Kerala HC6 Mar 2013CRL.A/1461/2003

Case brief

AI extract

What is this about?

The Criminal Appellate Court allowed the appeal filed by SURESH BABU against his conviction and sentence under section 58 of the Abkari Act. The court found the prosecution evidence unreliable due to contradictions between witnesses regarding sample drawing and improbable circumstances surrounding the seizure. The conviction was set aside, and the appellant was acquitted.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond cancelled and accused released.

Suresh Babu Vs State of Kerala — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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CRL.A.No. 1461 of 2003 ( )

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SC.297/2001 of III ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT-I, THRISSUR, DATED 20-08-2003

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APPELLANT(S)/ACCUSED:

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SURESH BABU, S/O.NARAYANAN, THOMARATH HOUSE, VELLIKULANGARA VILLAGE, KODINGA.

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BY ADVS.SRI.P.VIJAYA BHANU

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SMT.P.MAYA

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.1461 of 2003

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Dated this the 6^th day of March, 2013.

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J U D G M E N T

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The appellant is the sole accused in S.C.No.297 of 2001 of the court of III^rd Additional Sessions (Ad hoc) Fast Track court-I, Thrissur. In this appeal, he challenges his conviction and sentence imposed on him for the offence punishable under section 58 of the Abkari Act as per the judgment dated 20.8.2003 in the above Sessions case.

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The prosecution case is that, on 20.6.1999 at about 5.55 a.m. at the path way on the east to the toddy shop No.186 of Vellikulangara on the south of VellikulangaraKodakara road, the appellant was found in possession of 5 bottles of 750 ml. each and 4 bottles of 370 ml. each coloured arrack and thereby the accused has committed the offence punishable under section 55(a) of the Abkari Act. On the above allegation, crime no.34 of 1999 was

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registered in Irinjalakuda Excise Range and on completing the investigation, report was filed in the court of Judicial First Class Magistrate-Chalakkudy, wherein C.P.No.30 of 2001 was instituted and eventually the case was committed to the Sessions court, where the case was received as S.C.No.297 of 2001 and finally the case was transferred to the present trial court for disposal. On appearance of the accused, a formal charge was framed against him for the offence under section 58 of the Abkari Act, which when read over and explained to the accused, he pleaded not guilty. Resultantly, the prosecution adduced its evidence consists of oral testimony of Pws.1 to 5 and documents Exts.P1 to P10. M.Os.1 to 4 were also identified and marked. No evidence either oral or documentary produced before the court from the side of the defence. The trial court finally found that the prosecution has succeeded in proving offence under section 58 of the Abkari Act against the accused. On such finding, the accused is convicted for the said offence and accordingly he is sentenced to undergo

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Crl.A.No.1461 of 2003

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rigorous imprisonment for a period of 1 year and to pay fine of Rs.1 lakh and in default to undergo rigorous imprisonment for 3 months. It is the above finding and order of conviction and sentence challenged in this appeal.

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I have heard Adv.Sri.P.Vijaya Bhanu, learned senior counsel for the appellant and the learned Public Prosecutor.

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As I indicated earlier, to prove the prosecution case, though Pws.1 to 5 were cited and examined, the two independent witnesses who were examined as Pws.2 and 3, did not support the prosecution case. Therefore, to prove the occurrence, the prosecution heavily depends upon the evidence of Pws.1 and 4, who are the officials involved in the detection of the crime. When PW1-the then Preventive officer and PW4 -the Excise Guard were examined, they have deposed in terms of the prosecution allegation. When PW1 was examined, Ext.P1 arrest memo, Ext.P2 arrest intimation, Ext.P3 seizure and Ext.P4 labels on M.Os.1 and 2 were marked through him. PW4 also spoken in favour of the prosecution, particularly in tune with the deposition of

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Crl.A.No.1461 of 2003

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PW1. PW5 is the then Excise Circle Inspector who undertook the investigation. When PW5-the then Excise Circle Inspector who undertook the investigation was examined, Ext.P5 crime and occurrence report, Ext.P6 property list, Ext.P7 remand application, Ext.P8 chemical analysis report, Ext.P9 scene mahazar and Ext.P10 sketch plan are proved through him. The charge was laid by the successor of PW5.

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According to Pws.1 and 4, they received a complaint against the accused and accordingly when they reached on the eastern side of T.S.No.186 of Vellikulangara, they saw the accused coming from a idavazhi holding M.O.4 plastic bag which contains M.Os.1 and 2 series of bottles and M.O.3 glass inside the bag. According to Pws.1 and 4, on suspicion, they intercepted the accused and on examination of the contents of the bottles, they realised the same as coloured arrack and consequently the accused was arrested from then and there, and contraband article was seized and samples were drawn. According to Pws.1 and 4,

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Crl.A.No.1461 of 2003

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thereafter they proceeded to the Excise Range Office and accordingly the accused, contraband article, the samples and the connected documents were handed over to PW5.

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To challenge the findings of the court below and the order of conviction and sentence, learned counsel for the appellant vehemently submitted that the prosecution case is not free of doubt and the entire circumstances and facts relied on by the prosecution cannot be believed, especially in the light of the defence set up by the accused. It is also the submission of the learned counsel that there is no clarity in the deposition of Pws.1 and 4 with respect to the drawing of sample from the contraband article allegedly seized from the possession of the appellant. It is also the contention of the counsel that absolutely there is no legally acceptable evidence as to what was the contraband article alleged to had seized from the possession of the appellant. Therefore, according to the learned counsel, the findings of the court below are incorrect and liable to be interfered. On the other hand, learned Public Prosecutor submitted

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Crl.A.No.1461 of 2003

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that the evidence on record, particularly the deposition of Pws.1 and 4 are intact and there is nothing to disbelieve their version. It is also the submission of the learned Public Prosecutor that, beside the deposition of Pws.1, 4 and 5, the prosecution case is further supported by contemporary documents produced by the prosecution and therefore the learned Public Prosecutor submits that there is no scope for any interference with the findings of the court below.

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I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court and scrutinised the evidence and materials on record.

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At the outset it has to be noted that the specific defence taken by the accused is to the effect that he is implicated in this false case at the instance of the toddy shop contractor of T.S.No.186 of Vellikulangara, since under the leadership of the accused an agitation was launched against the above contractor who indulged in the sales of spurious toddy. According to me, the above

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Crl.A.No.1461 of 2003

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contention of the accused is not out of context, especially when Pws.1 and 4 admitted that the alleged seizure was effected when they went for investigation on the basis of the complaint received against the accused. Thus it can be seen that it is a case where even before proceeding to the spot, the prosecution has got the details of the person who involved in the alleged illicit sales and the name of the accused. Going by the evidence of Pws.1 and 4 it can be seen that the accused was found in possession of the illicit liquor at about 5.55 a.m. on 20.6.1999 and that too near to the toddy shop bearing No.186 of the contractor, against whom the accused lead the agitation. The above allegation and case of the prosecution, according to me, is quite improbable and unbelievable. In this juncture it is relevant to note that though the prosecution has cited Pws.2 and 3- two independent witnesses, they have turned hostile towards the prosecution. So according to me, the evidence of Pws.1, 4 and 5 requires more serious and close scrutiny. It is an admitted case of Pws.1 and 4 that they went to the

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place of occurrence on receiving complaint against the accused. But regarding the seizure and the drawing of the sample, as pointed out by the learned counsel for the appellant, their evidence are not so clear and are contradicting each other, particularly with respect to the drawing of sample. When PW1 says that a bottle having capacity of 375 ml. is taken as sample from M.O.2, PW4 says that 300 ml. is drawn from one of the bottle of M.O.2. According to me, that is a glaring defect and contradiction which goes against the very root of the prosecution, especially in the backdrops of the defence taken by the accused. According to me, even though the above contradiction is not so serious, the same is sufficient to create doubt in the mind of the court, especially in the backdrops of the defence put up by the accused. In this juncture it has to be noted that, as I indicated earlier, Pws.1 and 4 had admitted in an unequivocal language that they went to the spot on the basis of the complaint received against the accused. It is quite unbelievable and

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improbable that the accused was found early morning on 20.6.1999 at 5.55 a.m. at the alleged spot in the sales of illicit arrack or Indian Made Foreign Liquor. In this juncture it is also relevant to note that PW4 during his cross examination has admitted that there was an allegation against the contractor of the Toddy shop no.T.S.186 that there was a case registered against the said contractor on the allegation that he had sold spurious toddy. So according to me, a conjoined reading of the entire evidence and materials on record it is quite impossible to believe the prosecution case as such that the accused was found in possession of the contraband article at about 5.55 a.m. on 20.6.1999. Therefore, according to me, the appellant is entitled to get a benefit of doubt, which the trial court has miserably failed to extend in favour of the accused. Therefore, I am unable to confirm the conviction recorded by the trial court against the appellant. Accordingly, the conviction recorded by the trial court against the accused under section 58 of the Abkari Act is set aside.

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In the result this appeal is allowed setting aside the judgment dated 20.8.2003 in S.C.No.297 of 2001 of the

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court of III^rd Additional Sessions (Ad hoc) Fast Track courtI, Thrissur, and the appellant is acquitted of all the charges levelled against him and the bail bond if any executed by him stands cancelled and he is set at liberty. If the accused has deposited any amount in terms of the order dated 27.8.2003 in Crl.M.A.No.8752 of 2003 of this Court and if the same is retained in the court, the same shall be released to the appellant/accused forthwith, on an application filed by the appellant in this regard.

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Criminal appeal is allowed accordingly.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Suresh Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Suresh Babu v. State of Kerala

Case brief

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