Padmakshy vs The State of Kerala

K. Ramakrishnan, J.—This is an appeal filed by the accused in S.C. No. 1321/2002 on the file of the 3rd Additional Sessions Court, Kollam, is the appellant herein. The appellant was charge-sheeted by the Additional Sub Inspector of Police, Kollam East police station, in Crime No. 857/2000 of Kollam East Police Station under Section 8(1) read with Section 8(2) of Abkari Act.

The case of the prosecution in nut shell was that, on 27.08.2000 at about 3.30 p.m., the accused was found to be in possession of 22 packets of arrack, each having a capacity of 100 ml, near her residential property at Valathungal in Eravipuram Village, in violation of the Provisions of Abkari Act and thereby she had committed the offence punishable under Section 8(1) read with Section 8(2) of the Kerala Abkari Act.

After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Kollam, and the learned Magistrate has taken cognisance of the case as C.P. No. 248/2000 and the learned magistrate has committed the case to the Sessions Court, Kollam, and the learned Sessions Judge has taken cognisance of the case as S.C. No. 1321/2002 and made over to the 3rd Additional Sessions Judge, Kollam, for disposal.

When the appellant appeared before the court below, after hearing the learned Additional Public Prosecutor and the learned counsel appearing for the appellant, the learned Additional Sessions Judge framed charge under Section 8(1) read with Section 8(2) of Abkari Act, against the accused and the same was read over and explained to her and she pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Exts. P1 to P7 and Mos. 1 and 2 series were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the prosecution evidence and she had further stated that, she had not committed any offence and no article was seized from her possession and she was falsely implicated in the case. Since the evidence in the case did not warrant an acquittal under Section 232 of the Code of Criminal Procedure, the Additional Sessions Judge directed to enter on her defence. Exts. D1, D1(a) series were marked on the side of the defence. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) read with Section 8(2) of the Abkari Act and convicted her thereunder and sentenced her to undergo simple imprisonment for six months and also to pay a fine of 1,00,000/-, in default to undergo simple imprisonment for two months more. Aggrieved by the same, the present appeal has been filed by the appellant/accused before the court below.

During the pendency of this appeal, it was reported that, appellant is no more. Since fine has been imposed as part of the sentence, the appeal will not abate, in view of the Proviso to Section 394(2) of Criminal Procedure Code. So it was decided to hear the appeal on merit, though no legal representative had come on record.

Heard the learned counsel for the appellant and leaned Public Prosecutor.

The learned counsel for the appellant submitted that, there was no evidence to show that, it was seized from the possession of the accused but it was taken from the latrine, which was situated on the corner of the property. Further there was inordinate delay in producing the article and there is no evidence adduced on the side of the prosecution, as to who was in possession of the article from the date of seizure, till it was produced in court. So it cannot be said that, prosecution has proved beyond reasonable doubt that the article produced before the court is the same article that has been seized on the date of detection and the chemical analysis report relates to that article and that benefit must be given to the accused. So the appellant is entitled to get acquittal is the submission made by the counsel for the appellant.

On the other hand, the learned Public Prosecutor submitted that, the evidence adduced on the side of the prosecution proved beyond reasonable doubt that the accused was in possession of the contraband article and the court below was perfectly justified in convicting the appellant for the offences alleged and since the appellant is no more, the sentence of imprisonment alone cannot be executed against her, but if there is any property left out, the fine can be realised from the estate of the deceased appellant.

The case of the prosecution as emerged from the prosecution witnesses was that, on 27.08.2000, while PW 5 was working as Sub Inspector of Police, Kollam East police station and while he was doing patrol duty along with PWs 3 and CW 6, he got information that arrack was being sold from the house of one lady by name Kadackal and immediately he went to the spot and found the accused pouring some article to some persons and when he reached that place, she along with the person escaped from there by using a country boat and PW 4 conducted inspection of latrine in the property and found MO 1 cannas and also some covers, out of which 20 covers contained arrack and 11 covers were empty covers and he had taken sample, sealed the same and affixed the label and seized the same as per Ext. P1 mahazar in the presence of PW 1 and 2 and came to police station and registered Ext. P2 first information report as crime No. 857/2000 of Kollam East Police station.

Thereafter the investigation was conducted by PW 4, the Additional Sub Inspector of Police. He gave report showing the name and address of the accused and arrested the accused on 27.08.2000 at 3.30 p.m., with the help of woman police constable and prepared Ext. P4 inspection memo and gave Ext. P5 arrest notice. As per the forwarding note sent to court, sample was sent for chemical analysis and Ext. P6 report obtained. After completion of investigation, final report was filed.

PW 1 and 2 did not support the case of the prosecution. PW 2 had admitted his signature in Ext. P1, but denied having seen the seizure. PW 4 is the detecting officer and he had deposed that he along with CW 6 were doing their patrol duty and when they reached near the place of occurrence, they received information regarding the sale of arrack by a lady by named Kadackal, they went to her house and at that time, they saw a lady pouring some article to some person and on seeing the police party, she along with that person escaped from there in a country boat. Thereafter, he conducted inspection on the property and found MO 1 cannas in the latrine situated in that property and also MO 2 series plastic covers with arrack and some empty packets. After completing the formalities of sampling, he had seized the same as per Ext. 1 mahazar in the presence of PW 1 and 2. Thereafter he came to the police station and registered Ext. P2 first information report against the accused, alleging offence under Section 8(1) read with Section 8(2) of the Abkari Act. Ext. P7 is the search memorandum sent, which was marked through PW 4 during cross examination. The evidence of PW 4 was corroborated by the evidence of PW 3. PW 3 had categorically stated that, he is having prior acquaintance with the accused and she is known as Kadackal in the locality and this fact was admitted by PWs 1 and 2 as well, so he had identified her as the accused even at that time. There is nothing brought out to discredit the evidence of PWs 3 and 4 on this aspect.

It is settled law that, though the seizure mahazar witnesses turned hostile to the prosecution, is not a ground to acquit the accused or disbelieve the case of the prosecution regarding the seizure and if the court is satisfied with the evidence of official witnesses as trustworthy and not tainted with any doubt, then court can rely on the evidence of the official witnesses to convict the accused. So it is clear from the evidence that, the prosecution was able to prove that, they have seized some packet and MO 1 cannas said to have contained arrack and the person ran away form the place was the accused.

It is seen from the evidence that, there was inordinate delay of sending the article to court. Though the detection was made on 27.08.2000, they were produced before the court only on 20.10.2000. There is no explanation forthcoming from the side of the prosecution for the delay in producing the article. There is no evidence adduced as to who was in possession of the articles from the date of seizure, since it was produced before the court, so as to convince the court that the articles which were alleged to have been seized from the property of the accused were the same articles, which were produced before the court and Ext. P6 chemical analysis report relates to those articles so as to come to a conclusion that prosecution has proved beyond reasonable doubt that, the accused was found to be in possession of arrack so as to convict her for the offence under Section 8(1) read with Section 8(2) of the Abkari Act. This was so held in the decision reported in Ravi Vs. State of Kerala . This aspect has not been considered by the court below before coming to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt. So the appellant is entitled to get that benefit and the finding of the court below that, the prosecution has proved beyond reasonable doubt that, she was found to be in possession of arrack is unsustainable in law in view of the discretions made above and she is entitled to get acquittal of charge levelled against her giving her the benefit of doubt. So the finding of the court below that, she had committed the offence punishable under Section 8(1) read with Section 8(2) of the Abkari Act is liable to be set aside and I do so.

In view of the finding that, the appellant is entitled to get the acquittal of charge under Section 8(1) read with Section 8(2) of the Abkari Act, the sentence imposed by the court below is also illegal and the same is also liable to be set aside and I do so.

In the result, the appeal is allowed and the order of conviction and sentence passed by the court below in S.C. No. 1321/2002 on the file of the 3rd Additional Sessions Court, Kollam, as against the appellant are set aside and she is acquitted of the charge levelled against her, giving her the benefit of doubt.

Office is directed to communicate this judgment to the concerned court, immediately.