FRANCIS TELI v. NONE

V.K.MOHANAN, J.---------------------------------------------Crl.A.No. 203 of 2003 A--------------------------------------------- Dated this the 19th day of March, 2009J U D G M E N TThe sole accused in S.C.No.251 of 2001 of thecourt of Additional Sessions Judge (Ad Hoc)-II, Kasaragod isthe appellant. He challenges his conviction and sentence forthe offence punishable under Section 55(a) of the Abkari Act.2.The prosecution case is that at about 5.30 a.m.on 3.5.2000, the accused was found to be in possession of649 bottles of Boss-whisky in 27 card board boxes, 375 ml.each and 1248 bottles in 26 cardboard boxes of 180 ml. eachkept for unauthorised sale at Dygoli and thereby, the accusedcommitted the offence punishable under Section 55(a) of theAbkari Act. Based upon the above allegation, CrimeNo.100/2000 of Manjeshwar Police Station was registered forthe above offence. After investigation, a final report was filedbefore the Judicial First Class Magistrate Court, Kasaragodwhereupon C.P.No.309 of 2000 was instituted andsubsequently, the case was committed to the Sessions Courtas per the proceedings of the committal court, from where thecase was made over to the Assistant Sessions Court and Crl.A. NO.203 of 2003:-2-:thereafter, the same was withdrawn and transferred to the trialcourt. When the accused appeared, a formal charge wasframed after hearing the prosecution and the accused and whenthe charge was read over and explained to the accused, hepleaded not guilty. Consequently, Pws.1 to 7 were examined andExts.P1 to P11 were marked from the side of the prosecution.The contraband articles were produced, identified and marked asMO-I and MO-II series. When the accused was questioned underSection 313 of the Cr.P.C., he denied all the incriminatingcircumstances which emerged during the prosecution evidence.The accused took the defence of total denial. After consideringthe entire evidence on record, the trial court found that theaccused is guilty of the offences charged against him andaccordingly, after hearing him, on the question of sentence, hewas sentenced to undergo rigorous imprisonment for three yearsand also sentenced to pay a fine of Rs.1 lakh and defaultsentence is fixed as rigorous imprisonment for one year. It isthe above finding of guilt, conviction and sentence, challenged inthis appeal.3.I have heard learned counsel Sri.T.G.Rajendranappearing for the appellant and the learned Public Prosecutor Crl.A. NO.203 of 2003:-3-:Sri.C.M.Nazar.4.Learned counsel for the appellant submits that evengoing by the prosecution case, the appellant cannot be linkedwith the alleged possession of contraband article and he cannotbe convicted. It is pointed out that even according to theprosecution case, the accused was not arrested from the spot atthe time of detection of the crime and the seizure of thecontraband article. The only evidence that is available is that ofthe interested version of PW1 who says that he saw the accusedrunning away from the jeep and Ext.P5 is the photocopy of thedriving licence of the accused which is alleged to have beenfound from the jeep. The learned counsel pointed out that thereis no evidence either documentary or oral to show that theproperty in question, where the jeep was alleged to have beenparked from which the contraband articles were seized, wasbelonging to the accused. In the absence of evidence which isvery crucial in the given facts and circumstances of the case,according to the learned counsel, the finding of the court below isliable to be set aside and the appellant/accused is entitled to getan order of acquittal.5.Per contra, the learned Public Prosecutor submits Crl.A. NO.203 of 2003:-4-:that the seizure was timely effected on the basis of the priorinformation received by PW1 and when PW1 accompanied byPW6 went to the spot, they saw the accused running away fromthe jeep and the identity of the accused was proved throughPW1. In support of the above submission, the learned PublicProsecutor further submits that the presence of Ext.P5 which isseized by PW1 from the jeep in question further corroborates thecase of the prosecution that the contraband articles werepossessed by the accused himself. It is pointed out by thelearned Public Prosecutor that Ext.P1 is a document preparedconnected with the seizure of the contraband article and the saiddocument contained the details of the seizure itself and even theabsence of any endorsement to the effect that the accused wasseen running away from the spot no way will affect theprosecution case. Learned Public Prosecutor further submitsthat the contraband article involved in the case is a huge quantityand it is also brought on record that the accused was previouslyinvolved in another case and therefore, the finding of the courtbelow is correct and no interference is warranted. 6.I have carefully considered the contentions advancedby both the counsel for the appellant as well as the learned Public Crl.A. NO.203 of 2003:-5-:Prosecutor and also perused the evidence and other materials onrecord. PW1 is the officer who detected the crime and when hewas examined, he had deposed before the court in tune with theprosecution case. According to him, he had obtained priorinformation regarding the possession and unloading of IndianMade Foreign Liquor by the accused and based upon suchinformation, he himself accompanied with PW6 were proceedingto the spot and consequently, the contraband articles were seizedas per Ext.P1 mahazar. Ext.P2 F.I.R., Ext.P3 scene mahazar,Ext.P4 property list, Ext.P6 forwarding note, Ext.P7 report givento the Assistant Excise Commissioner etc. were proved throughPW1. PW1 has categorically deposed that he saw the accusedrunning away from the spot when himself and the partyapproached the jeep. He had also deposed regarding the detailsof the seizure and subsequent steps taken by him. Admittedly,the appellant/accused was not arrested from the spot. Regardingthe seizure, there is no independent evidence at all. Though theprosecution has cited and examined Pws.2 and 3 to prove theseizure, they turned hostile. So, the only evidence available toprove the prosecution case is certain documents and also thedeposition of Pws.1 and 6. Though I have repeatedly gone Crl.A. NO.203 of 2003:-6-:through the depositions of Pws.1 and 6, in no where it is statedthat they have prior acquaintance with the accused so as toidentify the person who was running away from the spot was theaccused. It is also pertinent to note that Ext.P1 mahazar is adocument claimed to have prepared then and there on theseizure of the contraband article. But, there is no endorsement tothe effect that the accused had run away from the jeep on seeingthe raiding party. Merely because Ext.P5 was seen inside thejeep, it cannot be held that it was the accused who had driven thevehicle and he is responsible for the presence of the contrabandarticle in the jeep. The prosecution has also failed to establishthe fact that the jeep is belonging to the accused. If that be so, itcannot be held that it was the accused who was responsible forthe presence of the contraband article and he was in possessionof the same. It cannot be ruled out that the vehicle was used bysome other person or some other driver for the purpose oftransporting illegally the contraband articles. In the absence ofany positive evidence to show that the accused was in exclusivepossession and responsible for the contraband article, it cannotbe said that the prosecution has succeeded in proving the guiltagainst the accused beyond reasonable doubt. Consequently, Crl.A. NO.203 of 2003:-7-:the accused is entitled to get the benefit of doubt. 7.Another circumstance relied on by the prosecution toconnect the appellant/accused with the seizure of the contrabandarticles is that the jeep bearing Registration No.KA-19-P-2346from where the contraband articles were seized, was parked infront of a pumphouse bearing No as C. No.9993/MJR-LT V whichis situated ten metres away from the northern side of a buildingwhich is under construction, in a place called Fygali inKodalmogalu Village and the said property is belonging to theappellant/accused. Ext.P3 scene mahazar gives the descriptionregarding the property where the jeep was seen. In Ext.P1seizure mahazar, it is stated the the jeep bearing Reg.No. KA 19P-2346 was seen faced to the eastern side near the Pump Housebearing Regn.No. C. No.9993/MJR-LT V situated on the northernside of the house under construction by K.Franics Telix,S/o.Liziya Telix, the accused. In support of the above allegationand to prove the same, the prosecution has produced Ext.P8certificate dated 17.10.2000. Ext.P8 is a possession certificatewhich is to the effect that Sri.Francis Telis, S/o,Ladhiri Telis ofKoliyoor Village of Kasaragod Taluk had got 0.30 Ares (thirtycents) of land in R.S.No.57/1 Part of Koliyoor Village over which Crl.A. NO.203 of 2003:-8-:he has got right as per sale Deed No.1346/93 dated 21.7.93.Admittedly, as per Ext.P8, the property mentioned therein is lyingin Koliyoor Vilalge whereas the property mentioned in Exts.P1and P3 is lying in Kodalmugalu Village. No evidence eitherdocumentary or oral is adduced by the prosecution to prove thatthe property where the above mentioned contraband articleswere seized is belonging to the appellant/accused. In theabsence of concrete evidence to prove the ownership of theproperty where the jeep was found, no penal liability can be fixedagainst the accused. Thus, on a consideration of the entire factsand circumstances and on analysis of the evidence on record, itcan be seen that the prosecution has miserably failed to establishthe link of the accused with the contraband articles alleged tohave been seized by the prosecution. Even, according to theprosecution, they have no claim that the accused was arrestedfrom the spot. So there is no evidence to prove that the accusedwas responsible for the contraband articles found in the jeep.Secondly, with respect to the property from where the jeep andthe contraband articles were seized, there is no admissibleevidence to show that the property was belonging to the accused.Since the provisions of the Abkari Act contemplates stringent Crl.A. NO.203 of 2003:-9-:punishment, to convict and sentence a person on the basis of theallegations under the provisions of the Act, the evidence alsomust be clear, clinching and convincing. But, in the presentcase, the prosecution has miserably failed to establish theallegation against the appellant/accused beyond reasonabledoubt and the appellant/accused is entitled to get the benefit ofdoubt and I do so. Therefore, the finding and order of convictionof the court below is liable to be set aside and accordingly theimpugned judgment is set aside.In the result, this appeal is allowed setting aside thejudgment dated 27.1.2003 in S.C.No.251 of 2001 of the Court ofthe Additional Sessions Judge, Kasaragod and he is acquitted ofall the charges levelled against him and he is set at liberty. Thebail bond, if any, executed by the accused will stand cancelled. V.K.Mohanan, JudgeMBS/ Crl.A. NO.203 of 2003:-10-: V.K.MOHANAN, JJ.-------------------------------------------- Crl.A.NO.203 OF 2003 -------------------------------------------- J U D G M E N TDATED: 19-3-2009 Crl.A. NO.203 of 2003:-11-: