N. Narayanan vs State of Kerala

K. Ramakrishnan, J.—The accused in S.T.C. No. 858 of 1991 on the file of the Judicial First Class Magistrate Court, Kasaragod and the appellant in Crl. A. No. 116 of 1998 on the file of the Sessions Court, Kasaragod, is the revision petitioner herein. The revision petitioner was charge sheeted by the Excise Inspector, Kasaragod Excise Range in Crime No. 120 of 1990 alleging commission of offence u/s 55(g) of the Abkari Act. The case of the prosecution in nutshell was that on 4.12.1990 at about 4 p.m., the accused was found to be in possession of about 20 litres of wash, a material used for preparing arrack in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable u/s 55(g) of the Abkari Act. After evidence earlier, the trial court convicted the accused for the said offence and sentenced him, which was challenged by him before the Sessions Court by filing Crl. A. No. 9 of 1995 and the learned Sessions Judge by judgment dated 10.11.1995 set aside the order of conviction and sentence passed by the learned magistrate and remanded the case for fresh disposal with some directions. Thereafter, P.Ws. 1 to 3 were recalled and further examined and P.Ws. 4 and 5 were examined on the side of the prosecution. Exts. P1 to P7 were marked on their side. After the completion of the prosecution evidence, the accused was again questioned u/s 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and further submitted that he has been falsely implicated in the case. On the date of incident, the Preventive Officer came to his house and asked for some tapioca, which he had handed over to him in the presence of D.W. 1. Thereafter, he was made to sign certain papers at the instigation of one Narayanan, S/o. Raman, who was responsible for filing certain cases through one Seethu against his brother-in-law. It is stated that due to his intervention and help, that case filed by the said Seethu, was dismissed. On account of that enmity and at the instigation of said Narayanan with the help of excise officials, he has been falsely implicated in this case. In order to prove his case, D.W. 1 was examined and the accused himself was examined as D.W. 2 and Exts. D1 to D8 were marked on his side. The prosecution also marked MO 1 through the prosecution witnesses. After considering the evidence on record, the learned magistrate again found the revision petitioner guilty u/s 55(g) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for 3 months and also to pay a fine of Rs. 3,000/- and in default to undergo simple imprisonment for another 3 months. Aggrieved by the order of conviction and sentence passed by the learned magistrate, the appellant preferred an appeal before the Sessions Court, Kasaragod as Crl. A. No. 116 of 1998. The learned Sessions Judge by the impugned judgment, dismissed the appeal confirming the order of conviction and sentence passed by the trial court. Aggrieved by the same, the present revision petition has been filed by the revision petitioner.

Heard Sri. Grashious Kuriakose, learned Senior Counsel appearing for the revision petitioner and Sri. S. Jamal, learned Public Prosecutor appearing for the respondent.

The learned Senior Counsel appearing for the revision petitioner submitted that the evidence of DWs 1 and 2 and the manner in which the alleged incident has alleged to have taken place will go to show that the case of the prosecution is unbelievable. Further the revision petitioner had filed a private complaint against the excise officials for falsely implicating him in a case like this and that also will go to show that he was promptly reacting against the official for falsely implicating in the case. The documents produced by him also will go to show that Sri. Narayanan, S/o. Raman was behind all these case and he was responsible for falsely implicating him in a case like this. He has also argued that the alleged incident happened on 4.12.1990. But the sample as well as the kannas were produced before the court only on 5.4.1991. There is no explanation forthcoming from the investigating officer for the delay in producing the same. So there is doubt regarding the genuineness of the article produced before the court. The possibility of tampering the article before producing the same before the court cannot be ruled out. He had relied on the decisions reported in Alex Vs. State of Kerala (2003 (1) KLT SN 9, Case No. 12), Sathi Vs. State of Kerala and Narayani Vs. Excise Inspector in support of his case. So, according to him, the prosecution has failed to prove that Ext. P3 chemical analysis report relates to the alleged contraband article seized from the possession of the accused and that benefit must be given to the accused and this fact was not considered by the courts below. So, the order of conviction and sentence passed by the court below are unsustainable in law and the revision petitioner is entitled to get acquittal.

On the other hand, the learned Public Prosecutor argued that the evidence of P.Ws. 1 to 3 will go to show that the contraband article was seized from the possession of the accused and the evidence of DWs 1 and 2 is not sufficient to prove the case of false implication as alleged by them. Further the identity of the article has not been questioned by the revision petitioner. So under the circumstances, the courts below were perfectly justified in convicting the appellant for the offence u/s 55(g) of the Abkari Act and no interference is called for in the hands of this Court.

The case of the prosecution in nutshell was that on 4.12.1990 at about 4 p.m., while P.W. 1 Preventive Officer attached to Kasaragod Excise Range along with P.W. 2 Excise Guard were doing patrol duty and when they reached the place of occurrence, they saw the accused coming with a kannas and on seeing the excise party, he tried to move away from that place. So they stopped him. On examination of the contents of the kannas, they were satisfied that it was wash. So, P.W. 1 took sample of the contents of the kannas in 200 ml bottle and sealed the kannas and the bottle and seized both the sample bottle and the kannas identified as MO 1 as per Ext. P1 mahazar in the presence of P.Ws. 4 and 5. According to him, he released the accused on bail from the spot after getting a bail bond executed by him. Thereafter, he produced the articles seized and the Mahazar before P.W. 3, the Excise Inspector of that Range, who registered Ext. P2, crime occurrence report. He produced the articles before Court along with property list. On the basis of request given by P.W. 3, the sample was sent from court for analysis and Ext. P3 report was obtained where it was mentioned that the sample received was 200 ml of yellowish brown turbulent liquid alleged to be wash involved in Crime No. 120 of 1990 of Kasaragod Excise Range and on examination, it was revealed that it contained 2.20% volume of ethel alcohol. Earlier only P.Ws. 1 to 3 were examined and Exts. P1 to P3 alone were marked.

On the basis of the evidence available then, the magistrate convicted the revision petitioner for the offence alleged which was questioned by him by filing Crl. A. No. 5 of 1995 before the Sessions Court and the Sessions Court set aside the order of conviction and sentence and remanded the case for fresh trial giving opportunity to the parties to adduce further evidence.

After remand, P.Ws. 1 to 3 were again recalled and examined and mahazar witnesses were examined as P.Ws. 4 and 5 and Exts. P4 to P8 were marked on the side of the prosecution. As usual, the mahazar witnesses turned hostile though they admitted their signature in Ext. P1 mahazar. According to them, they were made to sign the document from an arrack shop which was situated about 6 Km away from the alleged place of occurrence. They also stated that they knew the accused since long time. So it is quite possible that they are now trying to help the accused.

Though P.Ws. 1 and 2 were cross examined at length, nothing was brought out to discredit their evidence regarding the seizure of alleged contraband articles from his possession and formal arrest of the accused and execution of the bail bond by the accused. They denied the suggestion that they went to the house of the accused and obtained some tapioca and thereafter at the instigation of one Narayanan, S/o. Raman, the present accused has been falsely implicated in this case. Though a complaint was alleged to have been filed by the accused against the excise officials, it is seen from the judgment of the magistrate that, that was not subsequently pursued by the accused after disposal of this case. Further it is also seen from the judgment of the trial court that, that complaint itself was filed after 9 months of the incident in this case. So, under the circumstances, the magistrate as well as the sessions court rightly came to the conclusion that false implication as claimed by the revision petitioner appears to be not probable or believable.

Further the evidence of D.W. 1 also will go to show that he is the close associate of the revision petitioner and the revision petitioner was also working in the same society in which the witness was an office bearer. Though he claimed that he did not go to court and executed a bail bond, it is seen from Exts. P5 and P6, the affidavit and the bail bond signed by him for releasing the revision petitioner on bail in this case and it was executed from court. So under the circumstances, the courts below were perfectly justified in not relying on D.W. 1 for the purpose for which he was examined.

Ext. D1 to D6 were produced by the revision petitioner are in respect of the documents relating to M.C. No. 8/90 and 56/90 filed by one Seethu against the brother-in-law of the accused. There is no case that, that case was against the present revision petitioner. So under the circumstances, merely because one Seethu has filed the maintenance case against the brother-in-law of the revision petitioner is not a ground to come to the conclusion that he has been falsely implicated in the case. So under the circumstances, the false implication alleged by the revision petitioner in this case has not been established. It can be safely concluded that the prosecution has proved that P.W. 1 has seized a kannas which some liquid alleged to be wash from the possession of the revision petitioner.

The fact that the some article alleged to be wash was seized from the possession of the revision petitioner alone is not sufficient to come to the conclusion that the article seized was wash. It must be proved by the prosecution that the article seized from the possession of the revision petitioner, was the same article that was produced before the court without any possibility of tampering and that was sent to the laboratory and the report obtained from the laboratory relates to that article and if this was failed to be proved by the prosecution, then it cannot be said that the prosecution has established that the article seized was wash and it was seized from the possession of the revision petitioner. It was so held in the decision reported in Alex''s case, Sathi''s case and Narayani''s case (supra). In this case, though the alleged seizure was on 4.12.1990, it is seen from the records that the property reached the court only on 5.4.1991; after four months of the alleged incident. Further, even in the mahazar, there is nothing to indicate that any label was affixed on the kannas containing the signatures of the witnesses in whose presence the seizure was effected and the signature of the accused so as to identify the same later from court. There is no explanation forthcoming from the side of the prosecution as to the reason for the delay in producing the articles seized before court as well. So under the circumstances, the possibility of tampering the article before producing court cannot be ruled out and that benefit must be given to the revision petitioner as has been held in the decision cited supra. So under the circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that Ext. P3 chemical analysis report relates to the article alleged to have been seized from the possession of the revision petitioner and thereby they have proved beyond reasonable doubt that the revision petitioner was found to be possession of wash, a contraband article so as to convict him for the offence u/s 55(g) of the Abkari Act. This aspect has not been considered by both the courts below in the right perspective. The appellate court found that that is not sufficient to acquit the accused and it will not change the character or nature of the article seized. This approach of the learned Sessions Judge in view of the dictum cited supra is unsustainable in law and the court below should have given the benefit to the revision petitioner. So in view of the discussion made above, the finding of the court below that the prosecution has proved beyond reasonable doubt that the revision petitioner was found to be in possession of wash, a prohibited article under the Abkari Act and convicting him for the offence u/s 55(g) of the Abkari Act is unsustainable in law and the same is liable to be set aside giving the revision petitioner the benefit of doubt. So the revision petitioner is entitled to get acquittal of the charge leveled against him giving him benefit of doubt.

So the revision petition is allowed. The order of conviction and sentence passed by the Judicial First Class Magistrate Court, Kasaragod in S.T.C. No. 858 of 1991 confirmed by the Sessions Judge, Kasaragod in Crl. A. No. 116 of 1998 against the revision petitioner are set aside and the revision petitioner is acquitted of the charge leveled against him giving him the benefit of doubt. The bail bond, if any, executed by him will stand cancelled. The fine amount, if any remitted by him before the court below is directed to be refunded to him.