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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Viju @ Vijayan, S/o. Nanu – Appellant
Versus
State-Excise Inspector, Kalpetta Excise Range, Represented By The Public Prosecutor – Respondent
Crl.A No. 2966 of 2008
Decided on : 12-08-2021
Abkari Act - Section 55(g)- Evidence Act- Section 27, -Distilling of Arrack - Transporting 250kg of Jaggery, 1½kg of Navasaram and 200grams of Tatiripoovu – confession statement and Recovery – Proof of - whether the conviction entered and the sentence passed against the accused are sustainable or not.
Finding of the Court: If what a person says is to be used in evidence, his own words should be used. Evidence given by a witness of what another (the accused) said is basically weak. There is a possibility that the words may be imperfect; there is another possibility of imperfect memory. The narration of the exact word used may go different. In these circumstances, the confession statement recorded in the 'first person' becomes highly relevant - Alleged recovery was effected from an open place. The prosecution failed to establish the authorship of the concealment of the contraband substance by the appellant. The place from where the articles were allegedly recovered was accessible to others or ordinarily visible to others. The place from which the wash and other utensils were seized has not been proved to be under the ownership of or within the control of the appellant. No convincing evidence was adduced by the prosecution to establish that the appellant had knowledge of conscious possession of the contraband recovered - Prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory.
Result: Appeal allowed
JUDGMENT :
Challenge in this appeal is to the judgment dated 02.12.2008, passed by the Additional Sessions Judge-II, Kalpetta, in SC.No.13/2006.
2. By the impugned judgment, the appellant (accused No.2) was convicted of the offence punishable under Section 55(g) of the Abkari Act.
3. The prosecution case is that, on 10.11.2003 at about 04.00 P.m., the appellant and the other accused were found transporting 250kg of Jaggery, 1½kg of Navasaram and 200grams of Tatiripoovu through the Chooramal-Kappikadu estate road for the purpose of distilling arrack. On 17.11.2003, based on the confession given by the appellant, the Excise Inspector, Kalpetta (PW1) recovered wash and other utensils from a nearby rocky area.
4. After completion of the investigation, the final report was submitted against the appellant, and the other accused (A1 and A3) for the offence punishable under Section 55(g) of the Abkari Act before the Chief Judicial Magistrate Court, Kalpetta.
5. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 55(g) of the Abkari Act. The charge against accused No.3 abated on his death during the trial. The appellant and accused No.1 faced trial. They pleaded not guilty, and therefore, they came to be tried by the trial court for the aforesaid offence.
6. The evidence for the prosecution consists of the oral evidence of PWs.1 to 7, Exts.P1 to P14, and MOs.1 to 10.
7. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused, and hence they were called upon to enter on their defence and to adduce any evidence, they may have in support thereof. The trial court, after hearing the arguments addressed on both sides, found that the appellant is guilty of the offence under Section 55(g) of the Abkari Act and he was convicted thereunder. Accused No.1 was acquitted of the charge. The appellant/accused No.2 was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-.
8. Heard Smt.Celine Joseph, the learned counsel appearing for the appellant, and Sri.M.C.Ashi, the learned Public Prosecutor, appearing for the respondent.
9. The learned counsel for the appellant/accused contended that the prosecution failed to establish the charge against the accused.
10. Per contra, the learned Public Prosecutor submitted that the prosecution could establish the charge against the accused.
11. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.
12. PW1, the Excise Inspector, Kalpetta Range, on 10.11.2003 at 04.00 p.m., inspected a jeep bearing registration No.KL10D/7610 at Chooralmala. The appellant and the other accused were found in the jeep. On inspection, PW1 found that 250kg of Jaggery in 5 gunny bags, 1½kg of Ammonium Chloride, and 200 grams of Tatiripoovu were stored in the jeep. PW1 gave evidence that the accused confessed that those articles were transported for the purpose of distilling arrack, and hence he seized those articles as per Ext.P5 seizure mahazar. PW1 also searched the residence of accused No.3 as per Ext.P4 search list, but no incriminating materials were recovered. PW1 gave evidence that the accused had confessed to him that they had concealed wash in a rocky area in the forest land, approximately one kilometer away from the residence of accused No.3, on the bank of Aranapuzha. PW1 arrested all the accused and produced them before the Magistrate concerned. PW1 subsequently filed an application seeking custody of the appellant and recovered wash, and other utensils (MOs.3 to 9) kept for the purpose of distilling arrack from the rocky area on the bank of
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