Judgment · High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Criminal Appeal No. 1629 of 2003 (D) - - - - - - - - - - - - - - - - - - - -Dated this the 9th day of April, 2007J U D G M E N TThe first accused in Sessions Case No.708/1999, onthe file of the Additional Sessions Court (Ad Hoc-II), Kasargod, isthe appellant. He faced the trial for the offence punishableunder Section 8(1) and 8(2) of the Abkari Act, along with twoother accused, the second and the third accused. The allegationagainst the accused was that they had transported 350 packetsof Karnataka arrack in an auto rickshaw, bearing registrationNo.KL 14 A-4804, at Karuvalam-Theerthamkara road, atKanhangad Village. Though the accused 2 and 3 ran away andescaped, the appellant was caught. His stand was that he was apassenger in the auto rickshaw. This was rejected by thedetecting officer, PW.1, and the final report was filed, aftercompletion of the investigation, by PW.3, against all the threeaccused. The prosecution examined three witnesses and markednine documents, together with two material objects. The lowercourt gave the benefit of doubt to accused 2 and 3, and acquitted Crl.A.No.1629/2003-: 2 :-them. However, accepting the plea that the appellant was thepassenger and holding that he was carrying the contraband inthe auto rickshaw, was found guilty, and, therefore, wasconvicted and sentenced under Section 8(1) of the Abkari Act toundergo rigorous imprisonment for one year and to pay a fine ofrupees one lakh, in default of which to further undergo rigorousimprisonment for a period of three months. Set off was allowed. The first accused is, therefore, before this Court through thisappeal challenging the above conviction and sentence.2.I have heard the arguments advanced by thelearned counsel for the appellant, as well as the learned PublicProsecutor. In paragraph (9) of the judgment dated 22/09/2003,in Sessions Case No.708/1999, the learned Additional SessionsJudge discussed and found that there is no evidence againstaccused Nos.2 and 3, with regard to their identity. The courtheld:-“Who is the RC owner of the vehicle and who isthe driver at the time of detection are alldoubtful. So as far as A2 and A3 are concerned, the prosecution has not convincingly provedtheir involvement in the crime. Their names are Crl.A.No.1629/2003-: 3 :-stated in the seizure mahazar and FIR and theysurrendered before the court. How they areidentified is not established. Therefore they areentitled to the benefit of doubt.”3.The court accepted the plea of the appellant thathe was only a passenger. But that does not, ipso facto, meanthat it was he who carried the 350 packets of Karnataka Arrack, each packet containing 100ml, in the auto rickshaw. When thetrial court found the owner and driver of the vehicle, at the timeof detection, was not identified, basing on the evidence broughtbefore the court, it is to be further proved that the contrabandwas carried by the appellant himself. PW.1 was the PreventiveOfficer of the Excise Enforcement and Anti-Narcotic SpecialSquad of Hosdurg. PW.2 was the Additional Village Officer, whoprepared the cite plan and, PW.3 was the Excise Inspector, whofiled the final report.4.The prosecution admits that accused 2 and 3,had ran away. No attempt had been made by the prosecution toget the custody of accused 2 and 3, when they had surrenderedbefore the court below, and interrogate them. Nothing is Crl.A.No.1629/2003-: 4 :-available to show that it was the appellant who carried thecontraband and not the other two accused. Although, therunning away of accused 2 and 3 is itself insufficient to doubtthem, but it, prima facie, shows that they had prior knowledge ofcarrying of the contraband in the auto rickshaw. Had they beenquestioned, together with the owner of the auto rickshaw, theprosecution ought to have established the case, as to who wasthe actual driver of the auto rickshaw at the time of committingof the crime. Merely because the appellant admitted that he wasthe passenger, the prosecution cannot fasten the responsibilityof carrying the contraband in the auto rickshaw, on him. Theprosecution has to prove the case against the appellant, beyondthe shadow of doubt. In the case at hand, after acquittingaccused 2 and 3, on giving the benefit of doubt, in the nature ofthe investigation as seen from the records, the liability oftransporting the contraband in the auto rickshaw cannot be fixedon the appellant alone. Therefore, he is entitled for the benefitof doubt. 5.In the above circumstances, I hold that theprosecution has not proved the case, as required by law and I, Crl.A.No.1629/2003-: 5 :-therefore, acquit him after giving him the benefit of doubt. Theconviction and sentence passed by the trial court is set aside.He is set at liberty, cancelling his bail bond. The amount of fine, if any, remitted by the appellant, shall be returned to him, on hemoving for the same. The appeal is allowed as above.(J.M.JAMES)Judgems