Allowed

V.M.Vinod v. Station House Officer

Kerala HC17 Jan 2014CRL.A/2142/2003

Case brief

AI extract

What is this about?

In this criminal appeal challenging a conviction for illegal possession of wash under the Abkari Act, the High Court held that the trial court failed to establish the accused's connection to the offense. Due to lack of evidence proving the accused handled the contraband or was specifically implicated, the conviction was set aside.

What did the court decide?

Conviction set aside, appellant acquitted, bail bond cancelled, appellant set at liberty.

V.M.Vinod Vs Station House Officer — Kerala HC (2014) — LawSathi Research

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

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CRL.A.No. 2142 of 2003

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----------------------[AGAINST THE JUDGMENT IN SC 451/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 24-12-2003]

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APPELLANT(S)/ACCUSED: --------------------V.M.VINOD @ SURESH, AGED 27 YEARS, S/O.MADHAVAN, VALIYAKALLINKAL VEEDU, KANNIKKUNNU, CHITTARICKAL VILLAGE.

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BY ADV.SRI.M.THAMBAN SMT.T.SUDHAMANI

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RESPONDENTS(S)/COMPLAINANT & STATE:

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THE STATION HOUSE OFFICER,

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CHITTARICKAL POLICE STATION.

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THE STATE OF KERALA REP.BY

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

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ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.N.SURESH.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2014, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No. 2142 of 2003

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Dated this the 17^th day of January,2014

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J U D G M E N T

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The sole accused in S.C.No.451 of 2000 of the court of

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Additional Sessions Judge (ADHOC-I), Kasaragod is the appellant and he preferred this appeal challenging the judgment dated 24.12.2003 in the above sessions case as he is convicted and sentenced for the

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offence under Section 55(g) of the Abkari Act.

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The prosecution case is that on 23.9.1999 at 4.40 p.m., the accused was found in possession of 70 litres of wash in two kannas of 35 litres capacity each, hidden in a pit in the compound of his house bearing No.EEP.IV/345 at Kannikkunnu in Chittarikkal Village. On the above allegation, Crime No.152/1999 was registered in the Chittarikkal Police Station for the offence punishable under Section 55

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(g) of the Abkari Act.

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On completing the investigation in the above crime, a report

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was filed in the Judicial First Class Magistrate Court-II, Hosdurg and thus C.P.No.228/1999 was instituted and subsequently, by order dated 15.1.2000, the learned Magistrate committed the case to the Sessions Court and eventually, the case is transferred to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act and the said charge was denied by the accused when the same was read over and explained to the accused and he pleaded not guilty. Thus, the case had gone for trial during which Pws.1 to 4 are examined from the side of the prosecution and produced Exts.P1 to P6 documents. Mos.1 and 2 are identified as material objects and no defence evidence is adduced from the side of the accused. The learned Judge finally accepted the prosecution case as the same is proved beyond reasonable doubt and the accused is found guity of the alleged offence and accordingly, he is convicted for the offence under

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Section 55(g) of the Abkari Act. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for 3½ years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for three months and set off is allowed. Aggrieved by the above order of conviction and sentence, the appellant/accused preferred this appeal.

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Heard Smt.Sudhamani, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

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To prove the prosecution allegation against the accused, though they have examined Pws.1 to 4, only Pws.3 and 4 deposed before the court in favour of the prosecution. Pws.1 and 2 who are respectively attestors to the scene mahazar and seizure mahazar prepared in this case, turned hostile. Though PW2 admitted his signature in the seizure mahazar, he turned hostile to the prosecution with respect to all other aspects. PW3 is the then Village Officer in charge of Chittarickal village, who issued the possession certificate

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with respect to the house in question. Thus, Ext.P2 possession certificate is marked through PW3.

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PW4 is the then S.I. Of Chittarikkal Police Station, who detected the crime. Thus, when PW4 is examined, he had deposed that on 23.9.1999, while he was conducting abkari raid in Kadumeni, Kamballur, Ayannur etc. at about 4 'O' clock, he received information regarding the sale of illicit arrack by the accused in Ayannur. So, according to him, the party reached the spot and inspected the house premises of the accused and 8 metres of the south western corner of the house, the accused was found to have concealed two kannas of 35 litres capacity filled with wash. According to PW4, the accused was arrested and sample was taken in 4 bottles of 750 ml. capacity. The remnants, after drawing the same, were destroyed at the spot itself. According to PW4, he conducted the investigation on the next day and he had prepared Ext.P4 scene mahazar from the spot in the presence of witnesses. According to PW4, the properties were produced before

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the court, but no property list is produced. According to PW4, he had prepared a forwarding note for sending the sample for chemical analysis and the said forwarding note is marked as Ext.P5. On the basis of Ext.P5 forwarding note, according to PW4, Ext.P6 chemical analysis report is obtained. PW1 has identified Mos.1 and 2 cans each having the capacity of 35 litres as the material objects seized connected with the seizure effected in the present case. It is on the basis of he above evidence, the learned Judge of the trial court found that the accused is guilty of the charge levelled against him.

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The learned counsel for the appellant vehemently submitted

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that the prosecution has no case that the appellant was found handling

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the contraband article viz., the wash in the present case and there is also no evidence to show that it was the accused who kept the wash at the place of occurrence. So, according to the learned counsel, the trial court miserably failed to consider the above aspect and on an erroneous consideration, accepted the prosecution case against the

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appellant and accordingly, he is convicted. So, according to the learned counsel, the trial court has committed wrong in convicting the appellant for the offence under Section 55(g) of the Abkari Act in the absence of any evidence to connect the accused with the said allegation.

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Per contra, the learned Public Prosecutor submitted that the evidence of PW4, the detecting officer positively proved the presence of the accused in his house when the seizure was effected in the present case. According to the learned Public Prosecutor, PW4 and party proceeded to the house premises of the accused on getting information and the said fact further assures the correctness of the prosecution allegation against the appellant, who was arrested from the spot. So, according to the learned Public Prosecutor, the trial court is justified in convicting the appellant and no interference is warranted.

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I have carefully considered the arguments advanced by the

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learned counsel for the appellant as well as the learned Public Prosecutor. I have also perused the evidence and materials on record.

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In the light of the above divergent contentions and in the light of the evidence and materials on record, the question to be considered is whether the finding and conviction recorded by the learned Judge of the trial court are legally and factually sustainable. In the present case, the allegation of the prosecution against the appellant is that he was found in possession of 70 litres of wash kept in two kannas each having the capacity of 35 litres concealed in a pit in the premises of the house bearing No.EEP.IV/345 at Kannikkunnu in Chittarikkal Village. According to PW4, he proceeded to the house of the accused on getting information to the effect that the accused engaged in the sale of illicit arrack. But, according to PW4, he has no case that on their arrival in the house premises, the accused was found engaged in the manufacture of illicit arrack or the sale of the same. According to him, when he inspected the surroundings of the house of

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the accused, he found the two kannas referred above. The

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information, according to PW1, received was not to the effect that the accused was engaged in the illicit distillation of arrack or he was in possession of wash for the purpose of manufacturing arrack. So, this Court failed to understand under what circumstances PW4 conducted inspection of the house premises of the accused when he reached the spot on getting information about the sale of illicit arrack. PW4 does not say the detailed fact which led to the detection of the kannas which are allegedly concealed beneath the soil level. So, the above version of PW4, according to me, cannot be relied on since the same is not beyond the shadow of doubt.

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Though I have repeatedly gone through the deposition of PW4, he never deposed before the court that he found the accused handling the wash, which is allegedly detected by him. What PW4 stated during his chief examination is that വ�ട� പര�സര� പര�ശ��ധ�ചത�ല വ�ട�ന� 8 മ�റര നതക� പട�ഞ�റ മ�റ�

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സ)ക�ചത�യ� കണ�. 4.40-ന പപത�നയ അറസ� ന4യത�. PW4

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never deposed that the accused was found handling the wash or he was standing near the pit where MOs.1 and 2 were kept. It has come out in evidence that during the inspection conducted by PW4 at the house premises, he found the inmates of the house and he stated as “സ�ഭവസമയത� പപത�യ� �, അച�നമമ�ര�� സശ;�ദര�മ�ര�� വ�ട�ല�ണ�. പപത�യ�നട അച�നന ശ4�ദ=� ന4യത�ട�ല> .” As the exact location, from where the accused was arrested, is not mentioned in the deposition, it can be safely presumed that the accused was also available and present in the house. If that be so, it is for PW4 to convince the court, why he had chosen to arrest the accused alone, especially when PW4 failed to mention any special facts, which are not applicable to other inmates of the house, to arrest the accused. If the entire case is taken as true, all persons found in the house are

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liable to be implicated in the above crime and PW4 ought to have arrested those persons as well. But, no explanation is forthcoming from the part of PW4 in singling out the accused alone and to arrest him when the facts and circumstances available are equally applicable to all other persons present in the house at the relevant point of time. As correctly pointed out by the learned counsel for the appellant, neither the prosecution norPW4 has a case that the accused was found handling the contraband article. As I observed earlier, even PW4 has no case that the accused was found near or about the pit where Mos.1 and 2 were kept.

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It is also relevant to note that PW4 during his crossexamination has admitted to the effect that മ�തല�കള കണ പറമ�ല ക)ട� ആയന)ര -ക�ട�നപ�യ�ല പഞ�യത� ശറ�ഡ�ശലക� ശപ�വ�ന നടവഴ�യ�ണ�. The said fact admitted by PW4 is sufficient to hold that people those, who are using the pathway, have got access to the property from where the contraband articles are allegedly detected. In

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the absence of any specific allegation to the effect that it was the accused, who prepared and kept wash in Mos.1 and 2 and placed in the pit and due to the paucity of evidence to show the presence of the accused, near to Mos.1 and 2 or to show that he was handling the same, it cannot be said that the accused is responsible to keep the contraband article at the place of occurrence.

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In the light of the above discussion and in view of the

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evidence and materials available on record, according to me, the evidence adduced by the prosecution is insufficient to connect the appellant/accused with the alleged offence and therefore, according to me, the trial court is not justified in convicting the appellant for the offence under Section 55(g) of the Abkari Act in the given facts and circumstances of the case. Therefore, I am unable to approve the finding and conviction recorded by the trial court against the appellant and consequently, the conviction recorded by the trial court against the appellant for the offence under Section 55(g) is set aside.

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In the result, this appeal is allowed, setting aside the

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judgment dated 24.12.2013 in S.C.No.451/2000 of the court of Additional Sessions Judge (ADHOC-I), Kasaragod and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty.

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V.K.MOHANAN , Judge

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MBS/

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V.K.MOHANAN, J.

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CRL.A.No. 226 OF 2003

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J U D G M E N T

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Dated:29.10.2013

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V.M.Vinod v. Station House Officer

Case brief

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V.M.Vinod v. Station House Officer

Case brief

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