Kerala Abkari Act-Whether Conviction Sustainable When Independent Witnesses To Search Turned Hostile: Supreme Court To Examine

The Supreme Court recently agreed to examine whether conviction under Kerala Abkari Act ("Act") was sustainable when independent witnesses to search turned hostile.

The bench of Justices Ajay Rastogi and AS Oka issued notice in the special leave petition assailing Kerala High Court's order dated June 11, 2021 ("impugned order").

In the impugned order, the High Court bench of Justice K Haripal while dismissing the appeal against conviction u/s 55(g) and 8(1) and (2) of the Act had opined that although the independent witness had turned hostile to the prosecution but he had partly supported the case.

The petitioner's counsel MR Abhilash has submitted that prosecution witness 1 (police constable in Perunad police station) and 3 (​​Sub Inspector) were members of the search team and prosecution witness 3 was the Investigating Officer after the crime was registered at his own instance. He further submitted that there was a requirement of law that if such search was taking place, the authorities were under obligation to comply with Section 36 of the Kerala Abkari Act, 1 of 1077, and that clearly contemplated that there shall at least be two independent witnesses to accompany in such alleged search, if taken place.

It was also his contention that only PW 2 who was running a shop of cars and jeeps was an independent witness who had been examined as a prosecution witness and that who was declared hostile. Thus he further argued that in the given circumstances, the conviction was not sustainable in law.

Case Before Kerala High Court

The petitioner had preferred an appeal u/s 374(2) of CrPC challenging the correctness of the judgement dated May 9, 2011 passed by the Additional Sessions Court in which a case registered u/s 55(g) and 8(1) and (2) of the Act for engaging in the act of manufacturing arrack in a place by name Kochethupara in Perunad village and Manakayam muri within Ranni taluk in Perunad police station limits.

The Trial Court had acquitted accused Nos 3 to 7, but had convicted the petitioner u/s Sections 55(g) and 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for five years on both heads and also fined Rs.1,00,000/- each, in default to undergo rigorous imprisonment for one year each.

Relying on Sajeevan v. State of Kerala [2020(6) KLT 53] the petitioner's counsel submitted that the prosecution could not establish that the appellant was actually found in possession of so much quantity of arrack or wash and that there was no constructive possession proved against him.

He further contended that the supporting evidence was only of PWs 1 and 3 who were police officials and that PW2, the independent witness had turned hostile to the prosecution and in the circumstance, it was not proper on the part of the Sessions Court to place reliance on PWs 1 and 3.

While dismissing the appeal subject to the modification of sentence, the bench said that, "PWs 1 and 3 were discharging their official duties; they have no malice or ill-will against the appellant. Even the appellant has no case that they have any previous acquaintance with him, so that they were cooking up a false case against him."

With regards to the charges u/s 55(g) of the Act, the bench while noting that the appellant ran away from the place seeing the police party said that if he was innocent and had happened to be there by chance, there was no necessity for him to run away from the place seeing the police party.

"Oral evidence of PWs 1 and 3 indicate that he was actively involved in the making of arrack and that was why he had tried to flee from the place, seeing the police. The fact that the appellant was found in a remote place in the midst of such objectionable items, all paraphernalia for making arrack were found, the making of arrack was in progress; 40 litres of arrack was found from the place, speak volumes about his culpability. Similarly, large quantity of wash was also found concealed near the place of occurrence. All these aspects clearly indicate that the appellant was engaged in making of arrack, with the assistance of others, which attract offence punishable under Section 55(g) of the Abkari Act," the bench further noted.

Opining that offence under Sections 8(1) and (2) of the Act also was possibly found, the bench said that, "At the time when the police had reached there, making of arrack was in progress, manufactured arrack was found from the place, he had run away from the place seeing the police, all these are circumstances which entitled the prosecution to draw adverse inference against the appellant with regard to possession of arrack."

With regards to the submissions of petitioner's contention on the only independent witness turning hostile, the bench said that it was true that PW2, the  independent witness had turned hostile to the prosecution, but he had partly supported the case.

"He has stated that he had signed the Ext.P1 mahazar, but denied having witnessed the occurrence. Normally, such independent witnesses do not support the prosecution case. But the fact that he has admitted having signed the document itself strengthens the version of the prosecution case that a contemporaneous document was prepared at the time of detecting the crime," the court said.

Case Title: Gopinathan v. State of Kerala| SLP(Crl) No. 009195 / 2021

Coram: Justices Ajay Rastogi and AS Oka

Counsels: Advocates Abhilash M.R, Sayooj Mohandas M and Advocate on Record Sandeep Singh

Click Here To Read/Download High Court's Judgment 

Click Here To Read/Download Supreme Court's Order