JAYARAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants herein are the accused Nos.1 to 4 in S.C.No.99/2001 of the Court of Session, Alappuzha. They and two others faced trial before the learned Additional Sessions Judge (Adhoc)-II, Alappuzha under Section 55(a) of the Kerala Abkari Act (the Act) on the allegation that at about 2.45 p.m. on 10.8.1998, the accused Nos.1 and 2 were found transporting huge quantity of spirit in the lorry No.TN 69-Z/2989, and the accused Nos.3 and 4 were also found transporting huge quantity of spirit in the lorry No.TN 67/6262 as part of the same transaction. The accused Nos.5 and 6 are respectively the owners of the two vehicles. The accused Nos.1 and 2 are respectively the driver and the cleaner of the lorry No.TN 69-Z/2989, and the accused Nos.3 and 4 are respectively the driver and the cleaner of the lorry No.TN 67/6262. The offence was detected by the Additional Sub Inspector of Police, Cherthala on the basis of secret reliable information, and the detection was made at Cherthala. The Additional Sub Inspector arrested the accused Nos.1 to 4 on the spot, and seized the contraband articles. 110 plastic cans containing spirit were seen concealed under some salt sacks transported in the lorry No.TN 69-Z/2989, and 117 such plastic cans containing spirit were seen concealed under the goods transported in the lorry No.TN 67/6262. The vehicles, and also the huge quantity of salt, were also seized by the Additional Sub Inspector. After two days, after complying with the procedural formalities, the contraband articles, except the vehicles and the huge quantity of spirit were produced in court by the Additional Sub Inspector. The huge quantity of spirit contained in 217 cans, and also the vehicles, were produced before the Excise Commissioner, Alappuzha for necessary action under Section 67B of the Act. On the basis of the arrest and seizure, the Additional Sub Inspector registered the FIR. Investigation was taken over by the Circle Inspector of Police, Cherthala, and his successor submitted final report in court. During investigation, the owners of the two vehicles were arraigned as accused Nos.5 and 6. Pending the proceedings, the 6th accused died, and the charge against him thus abated.

(2.) The accused Nos.1 to 5 appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Section 55(a) of the Act. The prosecution examined 12 witnesses, and proved Exts.P1 to P8 documents in the trial court. The MO1 to MO13 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. In defence, they examined one witness as DW1. On an appreciation of the evidence, the trial court found the accused No.5 not guilty of the offence, and accordingly, he was acquitted. But the accused Nos.1 to 4 were found guilty. On conviction, they were sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.1,00,000/- each. Aggrieved by the judgment of conviction dated 4.8.2004, the accused Nos.1 to 4 have come up in appeal.

(3.) On hearing both sides, and on a perusal of the materials, I find that there is no satisfactory evidence in this case as against the accused Nos.2 and 4, who are said to be the cleaners respectively of the lorry Nos.TN 69-Z/2989 and TN 67/6262. The evidence shows that the vehicle No.TN 69-Z/2989 was driven by the 1st accused, and the other lorry was driven by the 3 rd accused. The Additional Sub Inspector saw the two vehicles coming; one following the other, and the prosecution evidence reveals that huge quantity of spirit was transported in the two vehicles as part of the same transaction by the accused Nos.1 and 3. Except that the accused Nos.2 and 4 were seen in the lorries, there is nothing to incriminate them, or to prove their involvement in the alleged transportation of spirit by the two drivers. There is nothing to show that the cleaners had any active involvement in the commission of offence by the drivers. There is nothing to show that the accused Nos.2 and 4 were actually the cleaners of the vehicles. Any way, in the absence of any incriminating evidence as against them, or to prove their direct involvement or complicity in the offence committed by the drivers, I feel it just and appropriate to acquit them.