IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 CRL.A.No. 845 of 2003() ----------------------- ( SC.137/1999 of ADDITIONAL SESSIONS COURT, ADHOC-II, THALASSERY) .................... APPELLANT/3RD ACCUSED: --------------------------------------- KULATHIL THOTTATHIL HAREESH KUMAR, S/O.MUKUNDAN, TECHNICIAN, AGED 28 YEARS, HAREESH NIVAS, THALASSERY AMSOM, PERUNTHATTIL DESOM, KANNUR DISTRICT. BY ADV. SRI.K.P.SARVOTHAMAN RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, EDAKKAD TO BE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2011, ALONG WITH CRA NO. 1020 OF 2003 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.Nos. 845 and 1020 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 6th day of January, 2011 JUDGMENT Appellants in Crl.No.A 1020 of 2003 are accused Nos.1 and 2 and appellant in Crl.A.No.845 of 2003 is accused No.3 in S.C. No.137 of 1999 on the file of the Addl. Sessions Court, Adhoc -II, Thalassery. 2. The appellants challenge the judgment of the learned Sessions Judge dated May 20, 2003 convicting them under section 55(a) of the Abkari Act and sentencing them to undergo rigorous imprisonment for two years each and to pay fine of Rs.1 lakh each, in default to undergo rigorous imprisonment for six months each. 3. The case of the prosecution as unfolded in evidence before the lower court, in brief, is this:- PW1 was the then Sub Inspector of Police, Edakkad Police Station. On February 2, 1998 he along with police party, including PW3 Head Constable attached to the Edakkad Police Station, Crl.A.845/2003 & con. case 2 was on patrol duty. At about 6.30 p.m. when they reached at Muzhappilangad, near Koodakkadavu Railway Gate, they found an auto-rickshaw bearing registration No.KL-12/4249 coming from Thalssery side. They stopped the auto- rickshaw and on search, they found three cardboard boxes near the seat containing Indian Made Foreign Liquor in bottles and in the back seat of the auto-rickshaw 12 polythene covers containing Indian Made Foreign Liquor bottles. On examination, it was found 42 bottles of Whisky each having capacity of 750 ml., 96 bottles of Whisky each having capacity of 180 ml., 36 bottles of Rum each having capacity of 375 ml., 48 bottles of Rum each having capacity of 180 ml. in the auto-rickshaw. Accused No.3 Hareeshkumar was driving the auto-rickshaw and accused Nos.1 and 2 were found in the passenger seat. PW1 arrested accused persons and seized the contraband articles. Ext.P1 seizure mahazar was prepared in the presence of PW2 independent witness. Ext.P3 is the F.I.R. which is registered against the accused persons. PW4 Crl.A.845/2003 & con. case 3 conducted the investigation, questioned the witnesses and after completing the investigation laid the charge before the committal court, Additional Chief Judicial Magistrate Court, Thalassery. 4. When the accused persons appeared before the committal court, copies of documents relied on by the prosecution were furnished to them. As the offence under section 55(a) of the Abkari Act is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Thalassery from where it was made over to the Assistant Sessions Court, Thalassery and later to the trial court for trial and disposal. 5. The accused on appearance before the trial court pleaded not guilty to the charge under section 55(a) of the Abkari Act . PWs.1 to 4 were examined and Exts.P1 to P7 and MOs.I to VI series were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused persons denied having committed any offence. No defence evidence was adduced. The trial court on an Crl.A.845/2003 & con. case 4 appreciation of the evidence found the accused persons guilty of the offence punishable under section 55(a) of the Abkari Act , convicted them thereunder and sentenced them as aforesaid. Crl.A. No.1020 of 2003 is filed by accused Nos.1 and 2 and Crl.A.No.845 of 2003 is filed by accused No.3 challenging their conviction and sentence. 6. Counsel for the appellant in Crl.A.No.845 of 2003 argued that appellant who is the 3rd accused was only a driver of the auto-rickshaw and he was not aware of the contraband articles transported in the auto-rickshaw, as the same belongs to accused Nos.1 and 2 and that therefore, the lower court went wrong in finding that the appellant/3rd accused has committed an offence punishable under section 55(a) of the Abkari Act. Learned counsel for accused Nos.1 and 2 would argue that even if the seizure of the contraband articles from accused 1 and 2 is proved, an offence under section 55(a) of the Abkari Act will not lie and at the most they can only be found guilty of having violated relevant Foreign Liquor Rules for having transported Indian Crl.A.845/2003 & con. case 5 Made Foreign Liquor in excess of the permissible quantity, which is punishable under section 63 of the Act. 7. The following points arise for consideration:- 1) Whether the prosecution has proved beyond doubt the seizure of MO1 to MOVI series from the accused persons? 2) Whether the 3rd accused has committed any offence? 3) Whether the conviction of accused 1 and 2 under section 55(a) of the Abkari Act can be sustained? 4) What are the offences committed by the appellants? 5) Whether the sentence imposed is excessive or unduly harsh? 8. I shall first consider whether the search and seizure of MOs.I to VI series containing Indian Made Foreign Liquor from accused persons are proved. PW1 the Detecting Officer as well as PW3 Head Constable, who accompanied PW1, testified in a convincing manner before the lower court regarding the seizure of the contraband articles from accused 1 and 2. I have gone through the Crl.A.845/2003 & con. case 6 evidence of PWs.1 and 3. Nothing was brought out in cross examination to discredit their evidence. No serious discrepancies were pointed out in their evidence to disbelieve them. They have no previous acquaintance or enmity towards accused1 to 3 to foist a false case. 9. Learned counsel for the appellants argued that as PW2, an independent witness, turned hostile, the evidence of official witness PWs.1 and 3 could not be believed without any corroboration. There is no substance in the above contention. There is no rule of law that the evidence of official witness cannot be believed without any corroboration. It is settled law that evidence of official witnesses can be accepted if it is found reliable. In the present case the evidence of PWs.1 and 3 is found to be reliable and trustworthy. Therefore, the lower court is perfectly justified in accepting evidence of PWs.1 and 3 and coming to the conclusion that 222 bottles of Indian Made Foreign Liquor were found in possession of accused 1 and 2. Crl.A.845/2003 & con. case 7 10. As regards accused No.3 is concerned, he was the driver of the auto-rickshaw in which the contraband articles were transported. Accused Nos.1 and 3 have no case that even when they boarded the auto-rickshaw the said contraband articles were kept in the auto-rickshaw. Further the driver of the auto-rickshaw may not be in a position to know what are the articles a passenger will be carrying in the auto-rickshaw. Therefore, I give the benefit of doubt to 3rd accused i.e., appellant in Crl.A. No.8945/2003 and acquit him of the charge under section 55(a) of the Abkari Act. 11. The next question for consideration is whether the conviction of accused Nos.1 and 2 under section 55(a) of the Abkari Act by the lower can be sustained. 12. Section 55(a) of the Abkari Act reads thus:- “55. For illegal import, etc. -- Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug.” Crl.A.845/2003 & con. case 8 Therefore, the question would be whether mere possession of Indian Made Foreign Liquor in excess of the maximum quantity prescribed under the notification existed at that time would attract an offence under section 55(a) of the Abkari Act. The permissible quantity of Indian Made Foreign Liquor that can be carried by a person is 1.5 litres as per S.R.O. No.127/99 issued under G.O.(P) No.22/99/TD dated 5-2-1999. 13. A similar question arise for consideration before a Division Bench of this Court in Mohanan V. State of Kerala (2007(1) KLT 845) wherein it has been held that section 55 (a) of the Abkaqri Act deals with only illegal import, export or transport etc. and is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing it. In the above decision the Division Bench followed the decision in Surendran V. Excise Inspector (2004(1) KLT 404). A reference was also made about the decisions in Mariamma & Anr. V. State of Kerala & Ors. (1998(1) KLT 286) and Purushan V. State of Crl.A.845/2003 & con. case 9 Kerala (2002(2) KLT 661). 14. In the light of the principles laid down in the above decisions, it can only be said that accused Nos.1 and 2 were found to be in possession of 222 bottles of Indian Made Foreign Liquor in violation of sections 10 and 13 of the Abkari Act and the above mentioned notification issued by the government, which is punishable under section 63 of the Abkari Act. Therefore the finding of the trial court that accused Nos.1 and 2 have committed an offence punishable under section 55(a) of the Abkari Act is not legally sustainable. Hence, conviction of accused Nos. 1 and 2 under section 55(a) of the Abkari Act is set aside and they are found guilty under section 63 of the Abkari Act for violation of section 10 and 13 of the Abkari Act. 15. The next question to be considered is what is the punishment that can be imposed on accused Nos.1 and 2. Maximum punishment that can be imposed under section 63 of the Abkari Act is a fine of Rs.5,000/- or imprisonment which may extent to two years. Taking into consideration Crl.A.845/2003 & con. case 10 the above aspect and on the fact that the incident occurred on February 2, 1998 i.e., about 12 years ago and as no previous conviction is pleaded or proved against accused 1 and 2, I feel that a sentence of imprisonment till the rising of court and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for one month's each would meet the ends of justice. 16. In the result, Crl.A.No.845 of 2003 is allowed. Appellant/accused No.3 is found not guilty of the offence alleged against him. Conviction rendered and sentence imposed against him by the trial court are set aside and he is acquitted under section 386 of the Cr.P.C. His bail bonds are cancelled. 17. Crl.A. No.1020 of 2003 is allowed in part. Conviction of the appellants/accused 1 and 2 under section 55(a) of the Abkari Act rendered by the trial court and sentence imposed on them are set aside and they are convicted under section 63 of the Abkari Act and sentenced to undergo imprisonment till the rising of court and to pay a Crl.A.845/2003 & con. case 11 fine of Rs.5,000/- each, in default to undergo simple imprisonment for one month each. Their bail bonds are cancelled. One month's time is granted for payment of fine. They shall surrender before the lower court on or before February 16, 2011 to suffer the sentence. P.Q.BARKATHALI, JUDGE mn Crl.A.845/2003 & con. case 12 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.Nos. 845 and 1020 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~= JUDGMENT 6-1-2011