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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Rafeeque, S/o. Purathmeethal Yusuf – Appellant
Versus
Sub Inspector Of Police, Kunnamkulam Police Station – Respondent
Crl.Rev.Pet.No.3218 of 2008
Decided on : 24-06-2020
Abkari Act- Section 55(a) - Absence of the signature of the first accused in Ext.P3 arrest memo- Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution.
Statement of facts:
The Deputy Superintendent of Police, Kunnamkulam intercepted and inspected the lorry KL-10A/8034 at the road in front of Royal Hospital at Kunnamkulam, at about 13:20 hours on 29.08.2000. He found 1271.880 litres of Indian Made Foreign Liquor (for short 'IMFL') in the lorry. The liquor was being transported without any permit. The first accused was the driver of the lorry. The second accused was found inside the cabin of the lorry. The Dy.S.P arrested them and seized the liquor. This is the prosecution case- The trial court framed charge against the two accused for the offence punishable under Section 55(a) of the Abkari Act- The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the first accused in this revision petition.
Finding of the court:
The order of conviction and sentence passed against the petitioner/first accused by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted.
Result: Revision petition is allowed
ORDER :
The revision petitioner is the first accused in the case S.C.No.502/2004 on the file of the Court of the Assistant Sessions Judge, Thrissur.
2. The Deputy Superintendent of Police, Kunnamkulam intercepted and inspected the lorry KL-10A/8034 at the road in front of Royal Hospital at Kunnamkulam, at about 13:20 hours on 29.08.2000. He found 1271.880 litres of Indian Made Foreign Liquor (for short 'IMFL') in the lorry. The liquor was being transported without any permit. The first accused was the driver of the lorry. The second accused was found inside the cabin of the lorry. The Dy.S.P arrested them and seized the liquor. This is the prosecution case.
3. The trial court framed charge against the two accused for the offence punishable under Section 55(a) of the Abkari Act. Both accused pleaded not guilty to the offence and claimed to be tried.
4. The prosecution examined PW1 to PW7 and marked Exts.P1 to P11 documents and MO1 to MO5 series material objects. No evidence was adduced by the accused.
5. The trial court found both accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder and sentenced them to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.1,00,000/-each and in default of payment of fine, to undergo rigorous imprisonment for a period of three months each.
6. The two accused filed separate appeals before the Court of Session, Thrissur challenging the order of conviction and sentence passed against them by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner, who is the first accused, and dismissed the appeal filed by him. The appellate court allowed the appeal filed by the second accused and set aside the order of conviction and sentence passed against him by the trial court.
7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the first accused in this revision petition.
8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
9. PW1 is the Deputy Superintendent of Police who detected the offence. He has sworn to the entire incident in detail. PW2 is the Circle Inspector who was in the police party led by PW1. He has also deposed with regard to the occurrence. PW3 is one of the independent witnesses examined by the prosecution. He has supported the prosecution case except the presence of the accused at the scene of the occurrence. But, he would say that he signed the seizure mahazar at the police station. PW4, the other independent witness, would say that he had seen the occurrence but he signed the seizure mahazar at the police station. PW5 is only an attestor to the scene mahazar. PW6 is the property clerk of the Magistrate's Court concerned. PW7 is the Additional Sub Inspector who conducted the investigation of the case.
10. Ext.P9 is the chemical examination report in respect of the samples of liquid which were sent for analysis. It shows that the samples of liquid contained ethyl alcohol of different strength.
11. Learned counsel for the petitioner contended that there is no reliable evidence to find that the petitioner was the driver of the lorry in which the liquor was allegedly transported or that he was arrested at or from the spot of the occurrence. Learned counsel would also contend that the evidence adduced by the prosecution is not sufficient to find that Ext.P9 chemical analysis report relates to the samples allegedly taken at the spot of the occurrence by PW1.
12. The evidence of PW1 is that, he intercepted the lorry and inspected it and when he found that liquor was being transported in it without any authority, he arrested the two accused persons who were found in the cabin of the lorry. PW1 identified the two accused in the court as the persons arrested by him. The evidence of PW2 is on the same lines. Of course, he has stated on cross-examination that the f
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