Allowed

Kumbukkal Kunhukunhu v. State of Kerala

Kerala HC17 Jan 2014CRL.A/1871/2003

Case brief

AI extract

What is this about?

In appeal against conviction under Section 55(a) of the Abkari Act for possessing liquor, the High Court allowed the appeal. Finding the prosecution evidence feeble due to hostile witnesses, lack of proof regarding the appellant's ownership/possession of the premises, contradictions in the seizure location, and defects in sample preservation, the court set aside the conviction and acquitted the ap

What did the court decide?

Appeal allowed. Impugned judgment of conviction set aside. Appellant acquitted of all charges and set at liberty.

Kumbukkal Kunhukunhu Vs State of Kerala — Cheque Dishonour | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.K.MOHANAN

¶4

FRIDAY, THE 17TH DAY OF JANUARY 2014/27TH POUSHA, 1935

¶5

CRL.A.No. 1871 of 2003 (E)

¶6

AGAINST THE ORDER/JUDGMENT IN SC 396/2000 of ADDL.SESSIONS COURT (ADHOC)-II, KASARAGOD DATED 01-11-2003

¶7

APPELLANT : ACCUSED No.1

¶8

KUMBUKKAL KUNHUKUNHU @ K.C.ANTONY, KARIVELLADUKKAM, BALAL VILLAGE.

¶9

BY ADV. SRI.SUBHASH SYRIAC

¶10

RESPONDENT : COMPLAINANT ;

¶11

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

¶12

BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA

¶13

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

V.K.MOHANAN, J.

¶15

Crl.A.No.1871 of 2003

¶16

Dated this the 17^th day of January, 2014

¶17

JUDGMENT

¶18

By the judgment dated 01/11/2003 in S.C.No.396 of 2000 the learned Judge of the court of the Additional Sessions Judge (Adhoc)-II, Kasaragod, while acquitting accused Nos.2, 3 and 4 in the above Sessions Case, the learned Judge convicted the appellant for the offence under Section 55(a) of the Abkari Act, who faced the above charge along with the above coaccused and thus the present appeal is preferred at the instance of the above convicted accused against the above judgment challenging his conviction and sentence.

¶19

The prosecution case is that, at about 11.30 a.m. on 17/8/1999 the accused four in numbers were found in unauthorised possession of Indian Made Foreign Liquor and spirit at Shibin Restaurant at Vellarikundu and therefore, according to the police, the accused has committed the

¶20

Crl.A.No.1871 of 2003

¶21

¶22

offence punishable under Section 55(a) and 64A of the Abkari Act.

¶23

On the above allegation Crime No.183 of 1999 was registered in the Vellarikundu Police Station for the said offence and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court-II, Hosdurg whereupon C.P.No.188 of 1999 was instituted and subsequently by order dated 29/11/1999 in the above proceedings, the learned Magistrate committed the case to the Sessions Court, whereupon S.C.No.396 of 2000 is instituted and subsequently made over to the court of Additional Sessions Judge (Adhoc)-II), Kasaragod. Thus, when the accused appeared before that court a formal charge was framed against them for the offence under Section 55(a) and 64 of the Abkari Act against A1 and under Section 55(a) against accused Nos.2 to 4. When the said charge was read over and explained to the accused, they pleaded not guilty after having denied the charge. Thereafter the case was

¶24

Crl.A.No.1871 of 2003

¶25

¶26

withdrawn from that court and transferred to the present trial court for disposal. Thus, during the trial of the case, PWs.1 to 3 are examined and Exts.P1 to P10 are produced and material objects MOs.I to VIII are also produced and identified from the side of the prosecution. No evidence is adduced from the side of the defence. After having considered the entire evidence and materials on record, the learned Judge of the trial court has found that Section 64-A has no application against A1 and further held that the prosecution has succeeded in establishing the charge under Section 55(a) against A1 and as far as A2 to A4 are concerned, they were found not guilty on the ground that the prosecution has failed to establish that they are the workers of A1 and their mere presence in the hotel is not sufficient to attract Section 55(a) of the Abkari Act. On the basis of the above finding, while A1 is convicted for the offence under Section 55(a) of the Abkari Act, all other accused are acquitted of the above charge. On such conviction, the appellant, who is the first accused, is sentenced to undergo

¶27

Crl.A.No.1871 of 2003

¶28

¶29

rigorous imprisonment for two years together with fine of Rupees One lakh and in default he is directed to undergo rigorous imprisonment for three more months. Set off is allowed. It is the above finding against the appellant and the sentence that are challenged in this appeal.

¶30

Heard Sri.Subash Syriac the learned counsel for the appellant and Smt.Laliza the learned Public Prosecutor for the State.

¶31

Out of the above three witnesses examined by the prosecution, PW.1 is the then C.I. of Police of Vellarikundu Police Station, who detected the crime. PW.2 is an independent witness, who is an attestor to Ext.P2 search list, but he turned hostile towards the prosecution. PW.3 is the then S.I. of Police Vellarikundu Police Station, who undertook the investigation and finally laid the charge. When PW.1 is examined, he deposed that, on receiving the information on 17/8/1999 about the unauthorised storage of Indian Made Foreign Liquor and spirit, for sale, after having prepared a

¶32

Crl.A.No.1871 of 2003

¶33

¶34

search memo at about 11 a.m. entrusted the same to be sent to the court. He along with the A.S.I and Police Constables reached at Shibin Restaurant situated at Vellarikundu Town and conducted search in the kitchen of the said hotel. Thus, he found 9 bottles of Raja Whisky, each containing 750 ml. kept in a big shoper, 25 bottles of original choice fine whisky, each bottle containing 375 ml. kept in a plastic sack and another set of 45 bottles of original choice whisky, each bottle containing 875 ml. Besides the above Indian Made Foreign Liquor, according to PW.1, he had also seen a white can of 35 litres capacity containing spirit and according to PW.1, the above material objects were seized as per the search list prepared by him and according to him, sample bottles were taken from the above set of Indian Made Foreign Liquor and also drawn sample from the spirit kept in the white can and thus the entire proceedings is recorded in the search list. The accused were arrested after preparing arrest memos. According to PW.1, on completing the proceedings, the

¶35

Crl.A.No.1871 of 2003

¶36

¶37

arrested accused and the contraband articles were taken to the Police Station and registered a case in Crime No.183 of 1999 of Vellarikundu Police Station. When PW.1 was examined, he identified Ext.P1 series of arrest memos with respect to the arrest of four accused, Ext.P2 search list prepared by him, Ext.P3 F.I.R. and Ext.P4 advanced search memo etc. prepared by him. Thus, Exts.P1 to P4 are marked through PW.1. PW.1 has also identified MOs.I to VIII.

¶38

As I mentioned above, PW.2 the independent witness examined in this case, who is an attestor to the search list prepared by PW.1, turned hostile towards the prosecution and he did not support the seizure claimed by the prosecution. PW.3 is the Sub Inspector of Police, who undertook the investigation, during which he questioned the witnesses and recorded their statement. According to PW.3, by preparing a property list, he produced the entire material objects and samples before the court and also prepared a forwarding note and filed the same before the court to send the same for

¶39

Crl.A.No.1871 of 2003

¶40

¶41

chemical analysis and obtained the chemical analysis report. It is also the claim of PW.3, that during his investigation, he seized the rent chits with respect to the building in question by preparing a seizure mahazar and also produced the rent chit by filing another property list. Thus, when PW.3 is examined, he identified and also marked through him Ext.P5 property list, Ext.P6 forwarding note, Ext.P7 chemical analysis report, Ext.P8 rent chit with respect to the building, where is Shibin Restaurant is housed, Ext.P1 seizure mahazar for the seizure of Ext.P8 rent chit and Ext.P10 forwarding note by which he produced Ext.P8 rent chit in the court. These are the evidences and materials referred to by the learned Judge in the impugned judgment in support of his finding and for convicting the appellant.

¶42

The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to establish its allegation against the appellant beyond shadow of doubt. But the trial court due to erroneous consideration

¶43

Crl.A.No.1871 of 2003

¶44

¶45

convicted the appellant and therefore such conviction is liable to be interfered with. In support of the above contention it is pointed out that, though Ext.P8 is in the name of the accused, the owner of the building covered by Ext.P8 is not examined. There is also no evidence to show that the building covered by Ext.P8 is actually belonging to the land lord referred in Ext.P8 rent chit. It is also pointed out by the learned counsel that Shibin Restaurant, from where the alleged seizure was effected, according to the prosecution, is situated at Kinalur Village. But Ext.P8 rent chit shows that the building is situated at Parappa Village. Another contradiction pointed out by the learned counsel is that, as per the charge and particularly in the light of the evidence of PW.3 the contraband article is seized from the chaipu of the kitchen situated outside the kitchen. But according to PW.1, seizure was effected from the kitchen. Another fatal defect in the prosecution, according to the learned counsel is that, about 14 days delay has occurred in producing the material objects and sample in the

¶46

Crl.A.No.1871 of 2003

¶47

¶48

court, for which there is no explanation. It is also contended by the learned counsel that absolutely no evidence, either oral or documentary was produced by the prosecution to show that the building in question was in the possession of the accused/appellant at the relevant point of time. So, according to the learned counsel, on the above ground which was not properly considered by the trial court, the appellant is entitled to get an acquittal.

¶49

Per contra, the learned Public Prosecutor submitted that the evidence of PW.1 and other documents show that the appellant as well as the other accused arrested from the restaurant, from where the contraband articles were seized by PW.1 and therefore, even in the absence of any documentary evidence connected with the licence for conducting such restaurant or in the absence of evidence to show that the building in question was rented out to the appellant, the charge under Section 55(a) of the Abkari Act would lie against the appellant and therefore the trial court is fully justified in

¶50

Crl.A.No.1871 of 2003

¶51

¶52

convicting the appellant.

¶53

I have carefully considered the argument advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have thoroughly perused the evidence and materials on record.

¶54

Having regard to the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant in the given facts and circumstances of the case and such a conviction is sustainable. At the out set it is to be noted that, though the prosecution case and the allegation is to the effect that, when PW.1 conducted search in the restaurant conducted by PW.1 in pursuance to an information received by him and he detected the contraband article and seized the same and accordingly all the accused were arrested. If that be so, this Court failed to understood as to why the learned Judge acquitted the other accused particularly when the learned Judge found that Section 64A is not attracted in the present

¶55

Crl.A.No.1871 of 2003

¶56

¶57

case. Suffice to say, the State has not preferred any appeal challenging the above acquittal of accused Nos.2 to 4 in the above Sessions Case.

¶58

On consideration of the contentions advanced by the learned counsel for the appellant, I am of the view that, such contention has some legal force in view of the evidence and materials available on record. In the present case, though PW.2 is examined as an independent witness to prove the seizure effected in this case, he turned hostile towards the prosecution. To prove the seizure in the present case, the prosecution has examined only PW.1 and no other police man, who claimed to have accompanied PW.1, is not examined. So, unless the prosecution establishes that the evidence of PW.1 is free of doubt or infirmities or contradiction, no conviction is possible. In the present case, the allegation of the prosecution against the appellant is that he was conducting Shibin Restaurant, from where the contraband article was allegedly seized and therefore he is liable to be proceeded under the

¶59

Crl.A.No.1871 of 2003

¶60

¶61

provisions of the Abkari Act. But to prove the above facts and circumstances and allegations, according to me, there is no legally acceptable evidence. As rightly pointed out by the learned counsel for the appellant, the Shibin Restaurant is housed in a building allegedly owned by the land lord, whose name is mentioned in Ext.P8 rent chit. But the said land lord is not examined to prove the said fact. So, the prosecution has miserably failed to show that the building in question is in the legal possession of the first accused/appellant. As pointed out by the learned counsel, whether the land lord referred in Ext.P8 has got absolute right, ownership or possession over the property covered by Ext.P8 to rent out the same to the lessee mentioned therein are also not proved. It is also relevant to note that no documentary evidence is produced by the prosecution to show that the appellant has got any licence to conduct restaurant in the building in question and according to PW.3 the investigating officer, he has not conducted any investigation in this regard. So, absolutely there is no

¶62

Crl.A.No.1871 of 2003

¶63

¶64

evidence to show that the appellant herein is in the possession of the building in question and he was conducting the Shibin Restaurant in the said building.

¶65

According to me, those evidences are probably not necessary, if the prosecution has succeeded to establish that the contraband article is seized from the exclusive possession of the appellant. In this regard also the prosecution evidence is very feeble and unreliable. When PW.1 was examined, he had deposed in the chief-examination itself in the following

¶66

way:-

¶67

“Hotel ഉടമ ക�ഞ�ഞ� @ Antony, Hotel ത��ഴ�ല�ള�കള മധ�, ക�ഞ� ര�മന , സ�ക�മ�രന എന�വര�# മദ%# കകവശ# നടത�യ��ന arrest വച� വ�ലന ത2യ��. 1 മ��ല 4 വതര പ��കതള arrest ത2യ�ന �യ�റ�ക�യ arrest memo യ�ണ Ext.P1(series).”

¶68

No where in the deposition of PW.1 it has been stated that at the time of the seizure, the accused was present and he was

¶69

Crl.A.No.1871 of 2003

¶70

¶71

arrested them from the restaurant itself. In the arrest memo of the first appellant, it can be seen that the exact place of arrest is mentioned therein. Therefore, the contention of the learned counsel, that the appellant was arrested from the Police Station after summoning him there, cannot be ruled out. The exact place of seizure effected by PW.1 is also not beyond controversy. As pointed out by the learned counsel as per the charge the seizure was effected from the chaipu of kitchen of the above hotel, which is situated outside the kitchen of the building. But PW.1 has deposed that:-

¶72

“Hotel-തF അട�കളയ�ല അട�പ�തF �റയക� ��തഴയ�യ� ......”

¶73

PW.3 during his cross-examination has stated:-

¶74

“കടയ�തട അട�കള 2�യ*�ല�ണ.”

¶75

Thus, according to me, the evidence, about the exact

¶76

location from where the seizure effected, is reliable and acceptable. About the exact location of the hotel in question, there is no satisfactory evidence. According to PW.3, the

¶77

Crl.A.No.1871 of 2003

¶78

¶79

investigating officer as per Ext.P8 the building is situated in Parappu Village. But, as per the other records of the prosecution the restaurant is situated at Kinalur. Even in Ext.P2 search list, the place of occurrence is referred to Kinalur-Karithala Village. So, the evidence of PW.1 cannot be accepted, particularly when there is no corroboration from any independent evidence.

¶80

It is relevant to note that, in the evidence of PW.1, he has not stated anything towards the steps taken by him for drawing proper sample and to keep the samples in tact. Ext.P2 search list, which is said to have been prepared by PW.1 at the time of the alleged seizure, also does not disclose the steps taken by PW.1 for a proper seizure and drawing of the sample, etc. In the schedule of Ext.P2 search list particularly in Item Nos.6 to 8 he had just mentioned about the taking of the sample only. For example it is recorded against item No.8 in the following manner:-

¶81

“Item ന#*ര (5) ല ന�ന�# ഉദMശ#

¶82

Crl.A.No.1871 of 2003

¶83

¶84

375ml. തക�ളQന ക�പ�യ�ല സ�#*�ള�യ� എട�ത സRല ത2യ��യ ക�പ�കള എണ#-2 (രണ�)”

¶85

No description is given about the seal said to have affixed on the sample. No specimen seal is affixed on Ext.P10 search list.

¶86

It is also relevant to note that, though the alleged seizure was effected in the present case on 17/8/1999, the material objects and the samples reached the court only on 31/8/1999 and thus there is a delay of 14 days. PW.3 has no explanation for the delayed production of the material objects. What he had deposed before the court is that the material objects were entrusted with the Station Writer to produce before the court and the same were under his safe custody. But PW.3 did not say anything about the safety measures taken by the Station Writer to keep the samples in tact. Suffice to say the said Station Writer has been neither cited as a witness nor examined in this case and therefore the accused is highly

¶87

Crl.A.No.1871 of 2003

¶88

¶89

prejudiced. So, in view of the above defect in the seizure and drawing of the sample and the delay in producing the sample before the court and the absence of the explanation for the delay and the evidence about the safety measures taken to keep the sample till the same were produced before the court, according to me, it cannot be said that the prosecution has succeeded in proving the case against the appellant beyond reasonable doubt, particularly in view of the decision of the Division Bench of this Court reported in Ravi Vs. State of Kerala [2011 (3) KLT 353].

¶90

Thus, in the light of the above discussion and in view of the available evidence and materials on record it can be seen that the evidence and materials on record in favour of the prosecution are feeble and the investigation in the above case was shabby. Due to the fatal defect pointed out with respect to the investigation conducted by the prosecution and due to paucity of reliable and trustworthy evidence I am unable to concur the finding and the conviction recorded by the trial

¶91

Crl.A.No.1871 of 2003

¶92

¶93

court against the appellant, since the prosecution has miserably failed to prove its case beyond reasonable doubt. Accordingly, by extending the benefit of doubt and due to paucity of evidence, the conviction recorded by the trial court against the appellant is set aside.

¶94

In the result, this appeal is allowed setting aside the judgment dated 01/11/2003 in S.C.No.396 of 2000 of the court of the Additional Sessions Judge (Adhoc)-II, Kasaragod and the appellant/accused 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.

¶95

Sd/-

¶96

V.K.MOHANAN, JUDGE

¶97

skj

¶98

True copy

¶99

P.A. to Judge

Kumbukkal Kunhukunhu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kumbukkal Kunhukunhu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Varkey Vs State of Kerala

Thulasi Das @ Eli Thulasi Vs State of Kerala

Anil Kumar Vs State of Kerala

V.M.Vinod Vs Station House Officer

D.Babu Vs State of Kerala

Padmini Vs Ramesan