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2023 Supreme(Online)(KER) 2327
HIGH COURT OF KERALA
SOPHY THOMAS, J
KELAPPAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 1687/2016
SRI.R.BINDU (SASTHAMANGALAM), SRI.PRASANTH M.P
The prosecution must establish the identity of the accused and follow statutory procedures for handling seized contraband to secure a conviction.
Headnote:
Revision - Conviction - Abkari Act - Section 55(g), Section 53A - The court found that the identity of the revision petitioner was not established beyond reasonable doubt, and the destruction of the seized liquor without proper inventory violated legal provisions, leading to acquittal.
Fact of the Case:
The accused was convicted under Section 55(g) of the Abkari Act for possessing wash for illicit arrack brewing. The prosecution claimed to have seized the wash near the accused's residence, but the accused denied the allegations and escaped during the incident.
Finding of the Court:
The court focused on two main issues: the lack of proper identification of the accused and violation of procedural requirements in the disposal of seized liquor. The prosecution failed to provide reliable evidence linking the accused to the alleged contraband.
Issues: Whether the identity of the accused was proven beyond a reasonable doubt and if there was a violation of procedural requirements under Section 53A of the Abkari Act.
Ratio Decidendi: The court held that without proper identification and adherence to the disposal procedures as stipulated in Section 53A, the prosecution could not sustain the conviction.
Final Decision: The conviction under Section 55(g) of the Abkari Act is set aside, and the accused is acquitted.
ORDER
This revision is at the instance of the accused in S.C. No.325 of 2012 on the file of Assistant Sessions Judge, Vadakara, assailing the judgment in Crl.Appeal No.420 of 2015 on the file of Additional Sessions Judge-V, Kozhikode, which upheld his conviction under Section 55 (g) of the Abkari Act , though the sentence was modified and reduced to certain extent.
2. The prosecution case is that, on 01.08.2011, PW2, the Preventive Officer and excise party on getting intelligence report, that arrack is being distilled, by the side of Vilangad river near to the house of Sri.Kellappan (revision petitioner) proceeded to that place and at 4.30 p.m, they found the revision petitioner carrying a 35 litre plastic can and on seeing the excise party, he left the can and jumped into the river and escaped. On inspection, another can of 35 litre capacity was also found nearby. Both cans contained wash meant for brewing illicit arrack.
On enquiry, it was revealed that, it was the revision petitioner, who left the can and escaped.
3. After taking sample in a 375 ml bottle from one of the cans, remaining wash was destroyed at the spot. The sample bottle, cans, and the documents prepared were all produced before the Excise Range Office, and PW2 himself registered the crime. PW5, Excise Inspector took over the investigation on 03.08.2011. On completing the investigation, charge sheet was laid against the revision petitioner under Section 55 (g) of the Abkari Act .
4. On appearance of the revision petitioner before the trial court, charge was framed under Section 55 (g) of the Abkari Act , read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined and Exts.P1 to P9 were marked from the side of prosecution, to prove its case.
5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced.
6. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55 (g) of the Abkari Act , and he was sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further period of one year.
7. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.420 of 2015. The appellate court, on re-appreciating the facts and evidence, upheld the conviction under Section 55 (g) of the Abkari Act , though the substantive sentence was modified and reduced to simple imprisonment for a period of one year, but without altering the fine amount and its default sentence, against which, he has preferred this revision.
8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgment of conviction and sentence imposed on the revision petitioner by the courts below.
9. Heard learned counsel for the revision petitioner and learned Public Prosecutor.
10. Learned counsel for the revision petitioner is assailing the conviction and sentence mainly on two grounds. The first ground is that, the identity of the revision petitioner was not proved beyond reasonable doubt, and the 2nd ground is, there was blatant violation of Section 53A of the Abkari Act .
11. PW2 is the detecting officer. He deposed that, on getting reliable information that illicit arrack is being brewed on the banks of Vilangad river near to the house of one Mr.Kelappan, the excise party proceeded to that place, and about 150 meters away from the house of Sri.Kelappan, they saw one person holding a blue can, and when they approached him, he jumped into the river leaving the can, and swam towards the other side of the river. In Ext.P2 seizure mahazar, it is stated that, the whereabouts of the person who escaped from the scene was spoken to by the witnesses present there. But, when examined be
