K. Narayanan Nair vs Station House Officer

K. Hema, J.—This appeal arises from the conviction and sentence passed against Appellant for offence u/s 55(a) of the Abkari Act.

According to prosecution, on 29.5.1999, PW1, the Sub Inspector of Police, received a telephonic message at the police station that public had detained a person with arrack packets. PW1 proceeded to the spot along with other police officials and on reaching there at 9.30 p.m. he found that a person was surrounded by the people of the locality. The said person was sitting on the road and packets of arracks were kept close to him. There were 99 Karnataka made arrack packets each containing 100 ml. The Appellant was questioned and on being satisfied that he committed offence under the Abkari Act, he was arrested from the spot and the articles were seized and samples were also taken. A case was registered and on investigation, charge sheet was laid against Appellant by PW4.

P Ws 1 to 4 were examined and Exts.P1 to P8 and Mos 1 to 3 were marked. The accused did not adduce any evidence. The trial court after consideration of the evidence on record found that the evidence of PW1 is convincing and reliable and it also found not to insist upon corroboration by independent witnesses. On the basis of the evidence on record, the accused found to be in possession of arrack. It was also held that the defence set up by the accused that a false case was registered under political influence and that accused was found drunk etc. was not acceptable. The above findings are challenged in this appeal.

Heard both sides. Perused the records. PW1 is the sole witness to the occurrence who supported the prosecution case. He deposed that he was Sub Inspector of Police on 29.5.1999 and he got information while he was sitting in the police station at about 9 p.m. that a person was detained by the people of the locality at Muthalappara along with arrack packets, he accordingly went to the place of occurrence and other police officials reached the place at 9.30 p.m. On reaching the place, he found that a person was detained by a group of people and he was sitting in the middle of the people and there were arrack packets kept near him. He made inquiries to PW2 and one Manoj who were present there and he was informed that the accused had brought arrack packets in an autorickhsaw. He was also told that when he was proceeding, people of the locality attempted to catch him but he ran away and fell down and sustained injury also. It was thereafter that the police was informed. The person who was detained was the accused. He was arrested and on examination of the plastic bag it was found to contain arrack. A mahazar prepared and articles were seized, sealed and labelled, after taking out samples in two bottles. Ext. P3 is the mahazar. On reaching the police station F.I.R. was registered Ext.P4. Material Objects were marked as Mos 1 to 3.

On going though the evidence of PW1, as rightly held by the court below, I find absolutely nothing to disbelieve his evidence. PW1 deposed about the circumstances under which accused was arrested. There is nothing in the evidence of PW1 or other witnesses to show that PW1 or the police was motivated to falsely implicate the accused in a case of this nature. From the evidence of PW1, it can easily be seen how he happened to reach the place and under what circumstances the accused was found at the place of occurrence and how contraband articles were seized. From evidence of PW1 coupled with the contemporaneous document it can easily be inferred that Appellant had dominion and control over 99 packets of arrack which were found kept close to him, when PW1 went to spot on getting information that he was detained by public. Appellant had no explanation for the possession of the same. Learned Counsel for the Appellant strongly argued that the mere finding of some packets close to a person, who was sitting on the road, the court cannot jump to the conclusion that he was in possession of those packets especially since, none from the locality was questioned by PW4 as admitted by him and there is no evidence to support the version given by PW1.

In the absence of independent evidence from the people of the locality it may not be proper to rely upon the sole testimony of PW1 to hold that accused was guilty of the offence, it is argued. It is true that no independent witness spoke in favour of the prosecution. PW2 is an attestor to the mahazar and PW3 is a witness to the scene mahazar. PW2 turned hostile to the prosecution and did not support the prosecution. PW2 admitted the signature in the mahazar and also stated that people of the locality had gathered there and that he had heard that a person was caught with arrack packets at Muthalappara.

PW2 is the person who according to PW1 informed the police about the incident and this fact was recorded in the F.I.R. itself. So, for the sole reason that PW2 turned hostile to the prosecution, the evidence of PW1 cannot be disbelieved or rejected. It is clear from the evidence of PW1 that he proceeded to the spot only because of the information that public had detained a person with arrack packets etc. In such circumstances, the trial court was correct in holding that the court need not insist upon independent corroboration, if the evidence of official adduced is acceptable and reliable.

It was also argued by learned Counsel for Appellant that as per the defence case accused was drunk and there was a quarrel and at the instance of the opponent political party, a false case was registered against the Appellant. It was argued that Appellant belongs to BJP and accused was falsely implicated in the case at the instance of Marxist party workers. Suggestions were also made in the cross-examination of PW1 to that effect, it is submitted.

On going through the statement given by the accused u/s 313 Code of Criminal Procedure I find that he gave another version before court. The case suggested in the cross-examination and the case set up by the accused at the time of questioning u/s 313 Code of Criminal Procedure are totally different. According to accused, he is a coolie by profession. At about 7.30 a.m. on 30.5.1999 two police constables from the police station came to him and stated that CPM people had given a complaint against him and he was asked to go with the police.

According to accused, on reaching the police station, the leaders of the CPM were at the police station and he was taken to the court by the police. It was at that time he came to know that he is an accused in an arrack case. He is a worker of the BJP and CPM workers foisted a false case against him because of political rivalry since he joined BJP after defecting CPM.

As per evidence, the incident occurred on 29.5.1999 at 9.30 p.m. The accused was arrested on 29.5.1999 at 9.30 p.m. as per the evidence of PW1 and the contemporaneous document. But at the time of questioning accused stated that he was asked to go to the police station on 30.5. 1999 i.e on the next day at about 7.30 a.m. Though an inconsistent version is not a ground to acquit the accused, the version given by the accused is not sufficient to disbelieve the evidence adduced by the prosecution. From the evidence, it is clear that the accused was arrested in the night of 29.51999 and he was not called to the police station on the 30th as put forward by accused. At any rate, the inconsistent version given by the accused is not satisfactory so as to throw overboard the case set up by the prosecution.

Learned Counsel for Appellant argued that PW4 has no powers to file a report u/s 50 of the Abkari Act. Hence cognizance taken in this case itself is illegal. It was argued that PW4 is only a Sub Inspector of Police of Control Room. As per the decision reported in Saji '' Kochumon v. State of Kerala 2010 (3) KLT 471 it is held that a Police can exercise powers only within the local jurisdiction i.e. within the territorial limits of his Police Station. PW4 being a Sub Inspector of Police of Control Room, he could not have filed a charge-sheet in this case, it is argued.

Learned Public Prosecutor argued that such a challenge was not there while PW4 was examined in court. Before the trial court such a point was not raised. Therefore accused cannot be acquitted on the ground argued by the defence counsel, it is submitted. It is true that PW4 stated that he is a Sub Inspector of Police attached to the Kasargod Control Room and he took up the investigation in this case and conducted investigation. Whether he had territorial jurisdiction or not to investigate on this case is not challenged when was examined in court. In the absence of evidence to show that PW4 had no local jurisdiction, the court cannot proceed on any assumption that he had no territorial jurisdiction and hence prosecution case is vitiated.

PW4, a responsible officer having stated that he conducted investigation while he was working as Sub Inspector of Police of Control Room and in the absence of any specific admission or evidence that he has no jurisdiction, the court cannot reject the prosecution case, on conjunctures that his investigation was without territorial jurisdiction etc. Evidence adduced in this case is not sufficient to raise any reasonable doubt on the question of competency of PW4 to investigate into the offence. This argument can only be rejected on the facts of this case especially in the absence of challenge.

Considering the evidence as a whole, I am satisfied that prosecution has established its case beyond reasonable doubt and evidence of PW1 is convincing and there is nothing to doubt the veracity of the evidence so as to insist upon independent corroboration. The defence was not able to substantiate that investigation is vitiated for any reason. The trial court has considered all relevant aspects and convicted the accused for possession of arrack. He was also sentenced adequately.

I find that sentence is only consistent with the gravity of offence. There is no ground to interfere with the sentence. The sentence is only to undergo rigorous imprisonment for one year together with fine of Rs. 1 lakh and in default for a further period of three months more.

In the result, this appeal is dismissed.