Krishnakumar and Others vs State of Kerala

Sunil Thomas, J.—The appellants were convicted by the Additional District and Sessions Judge (Ad-hoc) Fast Track Court-I, Pathanamthitta, in S.C. No. 472/2008 for offences punishable under Section 8(1) and (2) of the Abkari Act.

The allegation of the prosecution is that on 10/5/2006 at about 6.15 a.m., the first accused was found by the Circle Inspector of Police in possession of a two litre bottle containing about one litre of spirit and a glass, at a place near his residence. He was intercepted and after the formalities of seizure and drawal of samples, he was arrested. He thereupon disclosed the possession of huge quantity of spirit with his brother, the second accused, who was residing nearby. Thereupon the detecting officer prepared a search memorandum and proceeded to the adjoining house. From a shop room, two cans of 35 litres each capacity were seized. One can contained 30 litres of spirit and the other one had 15 litres of spirit. After drawing samples from the contraband, contemporaneous documents were prepared and the second accused was arrested. After the crime was registered, they were produced before the Court. They faced trial before the Sessions Court, pleading not guilty. On the side of the prosecution, PWs 1 to PW4 were examined and Exts.P1 to P15 were marked. MOs 1 to 5 were identified. The learned Sessions Judge, on appreciation of the entire evidence concluded that the prosecution had succeeded in proving the case against the accused, convicted them and sentenced each to undergo RI for four years and to pay a fine of Rupees One Lakh with a default sentence of RI for one year each.

This is challenged in this appeal at the instance of both the accused. Heard and examined the records.

The prosecution is relying essentially on the oral testimony of PWs 2,3 and 4. PW4, the Circle Inspector, was the detecting officer and PW3, the Head constable attached to his search team. PW2 was a woman who claimed to be an independent witness, who turned hostile and did not support the prosecution case in any manner, except admitting her signature in Ext. P1 search list. PW1 was the SI of Thiruvalla police station who verified the records and laid the charge.

The defence set up by the accused was that the first accused was an autorickshaw driver and on 9/5/2006 during night while he was driving his autorickshaw, he met with an accident with a police jeep. They abused him and thereafter implicated him in a false case. The second accused adopted same defence and both have pleaded a case of complete innocence.

PW3 and PW4 gave evidence supporting the prosecution case. PW2, an independent witness, admitted her signature in Ext. P5 Mahazar. Except that, she did not support the prosecution case in any manner. PW3 in his evidence deposed that on that day they were on a regular patrol duty. During the early hours, at about 5.15 a.m., PW4 got a secret information about the sale of spirit. They rushed to the police station, took the investigation kit and proceeded to the place of the incident. When they reached the spot, they found one person holding a glass and a bottle containing liquid. On tasting and smelling, it was certified to be arrack. Samples were drawn and after preparation of all contemporaneous documents, the first accused was arrested. He informed that his brother was in the adjacent building wherein spirit was available. Search memo was prepared and one shop was opened and searched in the presence of a neighbour. This version of PW3 is corroborated by PW4 the detecting officer. He clarified that he got specific information at 5.15 a.m. Thereafter, they proceeded to the spot and intercepted the first accused. Samples were drawn and after preparation of the contemporaneous documents and after initial formalities, the second accused was also arrested.

Ext. P13 is the list of property dated 10/5/2006 mentioning the various articles that were searched and the samples were forwarded to the Magistrate Court on the same day. The accused have no serious allegation that there was delay in any of the proceedings. Ext. P14 is a copy of the forwarding note by which the samples were forwarded to the chemical analysis lab. Ext. P15 is the chemical analysis report. It shows that all the samples contained ethyl alcohol. Item No. 1 was a sample allegedly drawn from the bottle held by the first accused. The ethyl alcohol content of it was 28.08%. Two other samples drawn from the can contained spirit. The contents of ethyl alcohol in those samples were 88.71% and 88.18%. The report shows that they were rectified spirit.

Essentially the allegation against the first accused is sought to be established through the oral testimony of PWs. 2, 3 and 4 with corroboration from Exts.P2,P3, P4 and P5. PW3 asserted that when he went to the spot along with PW4, they saw the first accused holding a plastic bottle and a glass. Plastic bottle contained one litre of arrack which was confirmed by Ext. P15 chemical analysis report. Ext. P2 is the arrest memo and Ext. P3 is the custody memo. Ext. P4 is the inspection memo and the crucial document is Ext. P5 mahazar. The prosecution heavily relied on Ext. P5 mahazar.

The learned counsel for the accused vehemently contended that the entire prosecution case, as against both the accused, was unbelievable for various reasons. It was contended that the second accused has absolutely no connection with the entire incident and the contraband articles. The allegation against the second accused was sought to be proved through the oral testimony of PWs2 to 4 and Exts.P1, P6, P7, P8 and P10. Ext. P1 is the search list, Ext. P6 is the search memorandum and Ext. P7 is the arrest memo, Ext. P8 is the custody memo and Ext. P10 is the arrest intimation notice. Evidently, no separate seizure mahazar has been prepared with respect to the articles, which were recovered from a shop room allegedly belonging to the second accused. However, the search memorandum itself seems to contain the proceeding regarding the search.

It is pertinent to note that the allegation against the second accused was on the basis of an alleged information passed by the first accused that the second accused was in possession of huge quantity of spirit. Though both the search and seizure were independent and separate, according to the prosecution, they are inter linked. No scene mahazar has been prepared which would have shown the exact lie of the various places and the buildings from where the recovery was effected. However, reference to Ext. P5 gives a fair idea regarding the lie and location of the various buildings. The first accused was allegedly found near the bathroom on the northern side of his house. There is a family house on the eastern side. The place from where the cans containing 45 liters of spirit were seized, was a shop room. The evidence of PW3 and PW4 indicate that the above shop room was found closed at the time of the inspection. PW3 has specifically stated that the lock of the shutter was broke open by PW4 to enter the house. Ext. P1 search list prepared by the Circle Inspector of Police shows that the shop room is numbered as XI/4524, which is the eastern room of a three shop room building. Ext. P1 seizure mahazar indicates that the shop room, from where contraband was allegedly recovered, had walls on three sides and a shutter on the fourth side. It appears that the house of the second accused was adjacent to this shop room. There is absolutely nothing to show that there is a direct access from the house of the second accused to this shop room. No material was placed by the prosecution to show the ownership of the above shop room. It appears that PW4 did not even have an allegation that the second accused was the owner of the house. The ownership or possession of the shop room has not been proved by reliable, cogent and convincing evidence. Further, in stead of asking the second accused to open the shop room to confirm that he was in factual physical possession of the property, the lock of the shutter was broke open by PW4. Evidence of PW3 and PW4 indicates that at that point of time, the second accused was sleeping in his house, which was situated near the shop room. PW4 has also admitted that the second accused was arrested from his house and at that time he was sleeping in that house.

The available materials, as narrated above, clearly show that there is absolutely no material to show that the shop room belonged to the second accused. There is absolutely no evidence to show the person who was in possession of the above shop room and whether it has been let out or was in the factual physical possession of the second accused. A criminal offence can be fastened on the second accused only if it is proved that he has connection with the building and he was the person who was in physical control or actual management of the room. This Court in Radhakrishnan v. State of Kerala [2009 (1) KHC 469] has dealt with this aspect and held that in all cases where the facts warrant it, a presumption of possession of the article recovered from a house may be raised against such members of the household as are in a position or control of its affairs, provided they were aware of the presence of the offending article. In other words, there must be something to show that they were in conscious possession. With respect to the disputed shop room, absolutely no evidence is forthcoming to connect the second accused with the contra band. There is nothing to show that he was the owner of the shop room or that he had physical possession of the building or that he had exclusive access or that he was in control and management of the above room. Hence, necessarily, the second accused is entitled for the benefit of doubt and no liability can be fastened on him.

The allegation against the first accused is sought to be established through the oral testimony of Pws2, 3 and 4 and Ext. P2 arrest memo, Ext. P3 custody memo, Ext. P4 inspection memo and Ext. P5 mahazar. PW2 did not support the prosecution case in its entirety, except admitting her signature in Ext. P5 mahazar. Even though the detecting officer was sought to be corroborated by the evidence of PW3, it appears that there were several contradictions in their version. It is pertinent to note that the specific allegation of the prosecution was that at 5.15 a.m., PW4 got an information that sale of arrack was going on in the house of the first accused. According to him, when he reached the spot, about 1-2 persons were there, who were claimed to be the customers. They ran away. The presence of those persons were not mentioned in Ext. P5 and not spoken by PW3. PW3 and PW4 further stated that the first accused was found with a bottle of arrack and a glass purported to be in the process of retail sale of arrack. According to PW4 it was a plastic bottle whereas, according to PW3 it was a glass bottle. There is considerable force in the contention of the learned counsel for the accused that it is highly unbelievable that the retail sale for consumption of arrack started at 5.15 a.m. At least to the extent of the alleged sale seen at 6.30 a.m. at the time of actual alleged interception, appears to be slightly unbelievable. This version has to be appreciated in the background of available other materials.

It is pertinent to note that though two separate seizures were conducted at two separate spots, seizure mahazar was prepared in the case of the seizure from the first accused alone. Regarding seizure from the second accused, there is no seizure mahazar. The only two witnesses to Ext. P5 seizure mahazar are PW2 and one Varghese. The second witness has not been examined. Other witness turned hostile. On the other hand, PW3, who claimed to be a member of the seizure party, has not signed Ext. P5. According to PW3, when he went to the house, he had seen a lady standing there. To a specific repeated question as to whether there was any other person, his reply was that he had not seen any other except the accused. However, the version of PW4 was that 2-3 persons came there. In the cross examination, he further stated that mahazar was prepared at the spot. However, in the chief examination, the version spoken by PW3 was that after the search at the shop, the seizure mahazar and the search list were prepared. On the other hand, version of PW4 was that search mahazar in relation to each seizure was prepared at the spot. Regarding the several questions put to PW3, he feigned ignorance.

PW3 in his chief examination deposed about the search in the shop room and the recovery of two cans. To a specific question as to whether any other item was there in the room, his reply was that he does not remember. Then a pointed question was put to him as to whether a funnel was seen. To this also, his reply was that he does not recollect. In fact, the prosecution case was that MO4 funnel was recovered from that shoproom. Thereafter, MO4 was again shown to him and he gave his answer in affirmative. To another specific question as to whether apart from the lady, any other person was there at the time of initial search, his answer was that he cannot recollect. To another question as to whether at the time of interception of the first accused any other person was there, his reply was that he cannot recollect whether any other person was present. To another question as to whether, on the samples, SI had noted and assigned numbers, his answer was that he could not recollect. To further question as to whether after breaking open the lock did anybody come to the spot, his answer was that he could not recollect. Though the case of PW4 was that 2nd accused was arrested from the house, version of PW3 was that he was arrested from the shop room. To a further question as to whether after entering the shop room, they found somebody sleeping there, his answer was that he could not recollect. To a specific question as to whether he had seen circle inspector questioning any other person, his answer was in the negative. He deposed that they left the spot at 10.a.m. To a specific question as to whether any person reached the spot in the meanwhile and CI had obtained signature from any person, his reply was in negative. This contradicts the version of the detecting officer that the signatures of the independent witnesses were obtained at the spot. To a specific question as to whether any person was found running away from the spot, the reply of PW3 was that no other person ran away. According to PW3, from the shop, samples in 375 ml bottle were taken whereas according to PW2, it was in 180 ml bottle. These inconsistent version raise a strong doubt as to whether PW3 has in fact witnessed the search.

It is pertinent to note that in the arrest memo, two independent witnesses have signed. They were not witnesses to the seizure mahazar. To a specific question as to why they were not made witnesses to the seizure mahazar, the explanation of PW4 was that they must have left the place after the arrest. It is pertinent to note that the second accused was arrested at 10.p.m. as per Ext. P7 arrest memo. According to the version of PW4, the seizure mahazar was prepared much earlier. In the above circumstances, his explanation for not asking the witnesses to the arrest memo to be witnesses in the seizure mahazar is unbelievable. It is also pertinent to note that in the arrest memo of the first accused there are two witnesses viz. Sathish and Sasikumar. In Ext. P7 arrest memo of the second accused allegedly proposed at 10 p.m. also, both the above persons have signed as witnesses. However, in Ext. P8 search list, one Santhamma who is the witness in Ext. P5, is the witness. This shows that the versions spoken by PW3 and PW4 are in consistent with each other and there were several points on which their version did not tally with the documentary evidence. The evidence tendered by the prosecution in the above circumstances is not sufficient to inspire confidence for a conviction. In the above circumstances, I feel that the benefit of doubt should be extended to the accused rather than relying on the highly shaky evidence tendered by the prosecution.

The conviction is liable to be set aside. In the result, the appeal is allowed. The impugned judgment and conviction are set aside and the accused are acquitted. Their bail bond stand discharged.