Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE4H DAY OF OCTOBER201312TH ASWINA, 1935 CRL.A.No. 1287 of 2005 (F) --------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC2142000 of ADDL. DISTRICT & SESSIONS JUDGE (ADHOC) COURT-I, KOLLAM DATED2707-2005 AGAINST THE ORDER
/JUDGMENT
IN CP901998 of J.M.F.C.-I, KOLLAM APPELLANTS : ACCUSED : ---------------------- 1. PRABHAKARAN, S/O.CHANDRAN, CHIRAYIL VEEDU, CHERIKKONAM CHERI, THRIKKOVILVATTAM VILLAGE FROM DEPOT PURAYIDAM CONTONMENT WARD, KOLLAM.
2. RAVEENDRAN S/O.KUNJUPILLAI, PUNNAVILA VEEDU NEAR NADUVATHOOR VILLAGE, VALLAM MURI, KOTTARAKKARA TALUK. BY ADV. SRI.C.RAJENDRAN RESPONDENT/COMPLAINANT: ------------------------ STATE OF KERALA-REPRESENTE BY SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
----------------------------------- Crl.A.No.1287 of 2005 ------------------------------------ Dated this the 04th day of October, 2013 JUDGMENT
It is alleged that on 22/7/1998 at about 12 noon the first accused was found in possession of about 23.5 litres of arrack in 235 polythene covers of 100 ml. each for sale, at the toddy shop No.85, of which the second accused was the licensee. According to the prosecution, the accused therein committed the offence punishable under Section 55(a) & (i) of the Abkari Act. But the trial court after trial found that the first accused is guilty of the offence under Section 55(a), whereas the second accused committed the offence under Section 55(i) of the Abkari Act and accordingly they are sentenced, as per judgment dated 27/7/2005 in S.C.No.214 of 2000 of the Additional District and Sessions Judge (Ad hoc) Court-I, Kollam. Challenging the above finding, conviction and sentence accused Nos.1 and 2 therein preferred the above appeal. Crl.A.No.1287 of 2005 :-2-:
2. The trial in the above case commenced on framing charge against the accused for the offence punishable under Section 55(a) & (i) of the Abkari Act which, when read over and explained to the accused, they denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P6 documents. MO.1 is also identified and marked by the prosecution. The plea taken by the first accused is that on the date of the alleged incident he came there as a labourer for the renovation work connected with the shop in question. According to the second accused, he is in no way responsible for the alleged incident and during the relevant time the toddy shop was not functioning. However, the learned Judge of the trial court finally found that, since the seized contraband item of arrack was found within the shop premises and in the custody of the first accused, it is easily inferable that the contraband was entrusted to the first accused by the 2nd one for sale from the toddy shop and accordingly held that the second accused is liable for the Crl.A.No.1287 of 2005 :-3-: offence punishable under Section 55(i) of the Abkari Act for stockage/storage of arrack in the toddy shop since the offence under Section 55(a) covers "stored for sale as well" and it is further held that the first accused is guilty of the offence under Section 55(a) of the Abkari Act. Accordingly, accused Nos.1 and 2 respectively are convicted for the offence under Section 55(a) and (i) of the Abkari Act and on such conviction the first accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of `1,00,000/- and in default he is directed to undergo simple imprisonment for six months, whereas the second accused is sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of `1,00,000/- under Section 55(i) of the Abkari Act and he is also directed to undergo simple imprisonment for one year, in case of default in paying the fine. Set off is allowed in favour of both the accused. It is the above finding, order of conviction and sentence that are challenged by accused Nos.1 and 2 in the above sessions case by filing the present joint appeal before this Court. Crl.A.No.1287 of 2005 :-4-:
3. Heard Sri.C.Rajendran, the learned counsel for the appellants and the learned Public Prosecutor.
4. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove that contraband article allegedly found in the place of occurrence was in the possession of the first accused and also failed to prove that he is the employee of the second accused. It is also the contention of the learned counsel that, though the contraband article, which is alleged to have been seized on 22/7/1998, has produced before the court only on 01/8/1998 and for the delay, there is no explanation and as there is no evidence regarding the proper custody of the samples, Ext.P6 chemical analysis report cannot be believed so as to warrant a conviction. According to the learned counsel, as the master-servant relationship between A2 and A1 has not proved no conviction against A2 would lie especially in the light of the decision of this Court reported in Muraleedharan Vs. S.I. of Police [2007 (2) KLT662. Crl.A.No.1287 of 2005 :-5-:
5. Per contra the learned Public Prosecutor vehemently submitted that the evidence adduced by the prosecution through PWs.3 to 5 would show that the first accused was in possession of the contraband article seized from the toddy shop run by PW.2 and thus the possession of A1 with the contraband article as well as the penal liability of A2 has been proved. According to the learned Public Prosecutor, in view of the decision reported in Biju Vs. State of Kerala [2012 (4) KLJ256, it was incumbent upon A1 to prove that the contraband articles seized were not in his conscious possession and in the present case such burden of the first accused has not discharged and thus according to the learned Public Prosecutor, the findings of the court below and the conviction recorded against the appellants are correct and no interference is warranted.
6. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and I have gone through the evidence and materials on record. Crl.A.No.1287 of 2005 :-6-:
7. In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is correct in its finding and convicting the appellants 1 and 2 respectively for the offence under Section 55(a) and (i) of the Abkari Act.
8. At the outset, it is to be noted that the prosecution has no case that A2 was present at the place of occurrence at the relevant point of time and he was arrested along with the contraband article from the place of occurrence. So, the liability of A2, if any, can be brought on record only with the aid of Section 64 of the Kerala Abkari Act. Section 64 of the Kerala Abkari Act reads as:- "Presumption as to commission of offence in certain cases:- In prosecutions under [section 55, section 55B, section 56A, section 57, section 58, section 58A, and section 58B] it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any Crl.A.No.1287 of 2005 :-7-: intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under [section 8 or section 55 or section 55B or section 56 or 56A or section 57, or section 58 or section 58A or section 58B] as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence:" On reading the above Section, to attract criminal liability against the second accused/appellant, considering the particular facts and circumstances involved in the case, firstly the prosecution has to prove the possession of the contraband liquor and its seizure from the first accused, who is said to have been arrested from the place of occurrence along with the contraband article. Secondly, the prosecution has to prove that the first accused is the employee duly appointed by the second accused and the prosecution has to further prove that, in case the second accused advances a defence that he has taken all due and reasonable precautions to prevent the commission of such offence, the first accused Crl.A.No.1287 of 2005 :-8-: has committed the offence with the consent and connivance of the second accused. So, in the present case if the evidence of the prosecution is not sufficient to prove the complexity and the involvement of the first accused, no penal liability is attracted against the second accused being the licensee of the shop in question. Now let us examine the evidence and materials on record.
9. To prove the prosecution allegations as I indicated earlier, the prosecution has examined PWs.1 to 5 and produced Exts.P1 to P6. Among the above 5 witnesses, PWs.1 and 2 are independent witnesses, who are attestors to Ext.P1 seizure mahazar. But when they were examined, they turned hostile to the prosecution, though they have admitted their signature in Ext.P1 seizure mahazar.
10. Under the aforesaid circumstances, the prosecution is constrained to depend upon the evidences of PWs.3 to 5 and other documents produced to substantiate their allegation against the accused. PW.3 is a police constable attached to Kottiyam Police Station at the relevant Crl.A.No.1287 of 2005 :-9-: point of time and according to the prosecution, he was one among the raiding party led by PW.5 the then S.I. of Police attached to Kottiyam Police Station. PW.4 is the then Excise Circle Inspector, who was examined to prove Ext.P2 licence issued in the name of the second accused. When PW.5 was examined Ext.P3 F.I.R., Ext.P4 property list and Ext.P5 report furnishing the correct name and address of A2 and Ext.P6 chemical analysis report are marked through him. PWs.3 and 5 in their deposition has stated that, on getting information by PW.5, about the illicit storage and sale of arrack from the toddy shop No.TS85 they proceeded to the said shop and they found the contraband item of arrack in 235 polythene covers of 100 ml. each bundled together at the second room on the Western side of the S-En corner of the toddy shop. According to PWs.3 and 5, the first accused was found standing in the said room and on his questioning, according to them, he divulged that he was engaged as a salesman by the licensee of the shop to sell arrack in the shop and the arrack was supplied by the said licensee. So, Crl.A.No.1287 of 2005 :-10-: according to PWs.3 and 5, A1 was arrested from the spot and the contraband articles were seized as per mahazar and they have drawn samples from the contraband article. According to PW.5, on completing proceedings at the spot they returned to the Police Station and registered Ext.P3 F.I.R. and he produced the properties in the court on the next day. These are the evidences referred to by the learned Judge in the impugned judgment, which formed the basis for his finding and to convict the appellants.
11. On a reading of the depositions of PWs.3 and 5, it can be seen that the reason for the arrest of A1 is that he was found in the room, where the contraband articles were kept.
12. In Ext.P1 seizure mahazar it is recorded:- "................... ............... (22-7-98) 12.15 ......" {Emphasis supplied} Crl.A.No.1287 of 2005 :-11-:
13. In the deposition of PW.3 particularly in chief- examination he had stated:- "............ . .................." {Emphasis supplied} Similarly when PW.5 was examined he had also deposed similar in way of PW.3. He said:- " plastic . . ............................... ." {Emphasis supplied} 14. So, neither Ext.P1 seizure mahazar nor the deposition of PWs.3 and 5 would show that A1 has got any access or dominion over the sack, which contained the contraband article allegedly kept in the toddy shop. In this juncture, it is also relevant to note that PW.5 in an unequivocal language deposed before the court that no sale proceeds was recovered from the possession of A1. So, absolutely there is no evidence from the side of the Crl.A.No.1287 of 2005 :-12-: prosecution to prove that the first accused was found either in physical or mental possession of the contraband article.
15. Moreover, it is relevant to note that, even according to the prosecution, the toddy shop was functioning at the relevant point of time and there were consumers in the toddy shop and adjacent to the main building of the toddy shop, there was another shed which was used as kitchen. Even according to the prosecution, the seizure was effected at about 12 noon, during meal time. In Ext.P1 mahazar it is also seen recorded that:- " ." Besides the above, it is also recorded in Ext.P1 mahazar:- " , , ." The prosecution has no case that the above clothes belong to the first accused. In the above circumstances, according to me, even if it is true that the first accused was found in the room, where the contraband articles were kept, it cannot be Crl.A.No.1287 of 2005 :-13-: presumed that, even though the same is not sufficient to prove the possession of the accused over the contraband article, that the prosecution has succeeded in showing the real possession of the 1st accused, over the contraband article. It is incumbent upon the prosecution to prove that in all respects the accused has access, control and dominion over the property. So the evidence adduced by the prosecution to prove the physical possession of the accused over the property is shabby and unacceptable. According to me, the decision relied on by the learned Public Prosecutor reported in Biju Vs. State of Kerala [2012(4) KLJ256 will attract only if the prosecution succeeded in proving the physical possession of the first accused over the property. But in view of the facts which referred above, the prosecution has miserably failed in discharging the above burden and hence the above referred decision has no relevance.
16. But, unfortunately, ignoring the above prosecution evidences, in paragraph 19 of the impugned judgment the learned Judge has held:- Crl.A.No.1287 of 2005 :-14-: "since the contraband item of arrack was found within the shop premises and in the custody of the first accused ........" {Empasis supplied} and further held :- "It is easily inferable that the contraband article was entrusted to the first accused." According to me, the above finding cannot be treated as a legal finding supported by evidence and materials for the aforesaid reasons.
17. Moreover, it is relevant to note that, though the alleged seizure was effected on 22/7/1998, the material objects were produced before the court only on 01/08/1998 and there is a delay for which there is no explanation at all. In this juncture, it is not out of contest in re-collecting the contradictions that contained in the prosecution witnesses and in Ext.P1 mahazar with respect to the colour of the plastic covers. So, according to me, no reliance can be placed for the alleged seizure and sampling and Ext.P6 chemical analysis report. The above fact also goes against the prosecution and hence I am unable to endorse the Crl.A.No.1287 of 2005 :-15-: findings of the court below that the contraband articles were seized from the possession of the first accused.
18. It is further relevant to note that to prove that A1 was duly appointed employee of A2, except the version of A1 allegedly made by him before PWs.3 and 5 absolutely there is no legal evidence. It is true by examining PW.4 and producing Ext.P2, an attempt was made by the prosecution to show that the shop in question given in auction to A2. But no documentary or other acceptable evidence is collected and produced to show that the first accused was an employee of A2. As far as the toddy shops are concerned the employees of every toddy shops are registered and there will be documents with the concerned authorities including the documents for the contribution made by the employer towards the gratuity and provident fund, etc. But no attempt is made to collect any such document. So, in the absence of any documentary evidence to show that A1 is the employee of A2, no criminal liability can be fastened upon the second accused/second appellant. In this juncture, it is relevant to Crl.A.No.1287 of 2005 :-16-: note that, even according to the learned Judge of the trial court, the prosecution has not proved that the first accused, who is said to have been appointed by A2, engaged in the sales of arrack. If that be so, it is illegal and unwarranted to convict A2 the licensee of the shop for the offence under Section 55(i) of the Abkari accused unless the prosecution succeeds in establishing the conditions stipulated in 64 of the Abkari Act and the necessary facts connected thereto. So, the above finding of the learned Judge cannot be endorsed on any ground. In the light of the above discussion and evidence and materials referred to above, according to me, the prosecution has miserably failed to prove its allegation against the appellants/accused and the findings of the court below cannot be approved due to the above mentioned defect and insufficiency of legal evidence from the part of the prosecution to warrant a conviction against them for the offence under Section 55(a) & (i) of the Abkari Act respectively. Accordingly, the conviction recorded by the Crl.A.No.1287 of 2005 :-17-: trial court against the appellants/accused is set aside. In the result, this appeal is allowed acquitting the appellants/accused of all the charges levelled against them by setting aside the judgment dated 27/7/2005 in S.C.No.214 of 2000 of the Additional District and Sessions Judge (Adhoc) Court-I, Kollam and the bail bond, if any, executed by the appellants, stand cancelled and they are set at liberty. V.K.MOHANAN, JUDGE skj True copy P.A. to Judge