IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.THANKAPPAN THURSDAY, THE 9TH AUGUST 2007 / 18TH SRAVANA 1929 CRL.A.No. 802 of 2007() ----------------------- SC.2103/2002 of THE ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA CP.159/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT: SOLE ACCUSED/ACCUSED NO.7 IN THE CHARGE -------------------------------------------------- SHEEJA, D/O.SATHY, ANJALIYIL, HOUSE NO.588, WARD NO.8, NEDUMANGADU MUNICIPALITY, PADMIJATHIL VEEDU, NEDUMANGADU. BY ADV. SRI.C.C.THOMAS RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KADAKKAL POLICE STATION, KOLLAM, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.7.2007 ALONG WITH CRA NO. 803 OF 2007, CRA NO. 811 OF 2007 AND CRA NO. 815 OF 2007, THE COURT ON 9.8.2007 DELIVERED THE FOLLOWING: ORDER IN CRL.M.A. NO. 5299 OF 2007 IN CRL. APPEAL NO. 802 OF 2007. DISMISSED 9.8.2007 Sd/-(K.THANKAPPAN, JUDGE) K.THANKAPPAN, J. ---------------------------------------- CRL. APPEAL NOS. 802, 803, 811 & 815 OF 2007 ---------------------------------------- Dated this the 9th day of August, 2007 JUDGMENT The above appeals are filed by accused Nos. 7, 6, 2, 3 and 5 respectively in Sessions Case Nos. 2103 and 2095 of 2002 and 1370 of 2003 on the file of the Additional Sessions Court (Abkari Cases), Kottarakkara. The appellants in the above appeals along with the first accused faced trial for the offences punishable under Sections 55(a) and (i) and 57(a) of the Abkari Act. 2. The prosecution case against the appellants- accused was that on 22.8.1999 at 5.50 a.m. the appellants along with accused Nos.1 and 4 were found in possession of 3050 litres of spirit blended toddy in four synthetic tanks of 500 litres each, 11 samovars of 50 litres each, 8 samovars each of 25 litres, 6 jerry can of 50 litre capacity and 130 litres of spirit in four jerry cans for the purpose of sale. It is the further case of the prosecution that accused Nos.1, 6 and 7 were Toddy Shop contractors and that accused Nos.2 to 5 were seen engaged in filling spirit into the samovars from the CRL.A.NOS.802,803,811 & 815/07 2 synthetic tanks. To prove the case against the accused, the prosecution examined PWs.1 to 10 and produced Exts.P1 to P11 as well as MOs. I to IV. On the side of the defence DW.1 was examined, but no documents were produced. On closing the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied the allegations levelled against them. However, relying on the prosecution evidence, the trial court found accused Nos.2, 3 and 5 guilty under Section 55(a) of the Abkari Act, convicted them thereunder and sentenced them to undergo rigorous imprisonment for five years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months each. They were found not guilty under Sections 55(i) and 57(a) of the Abkari Act. Accused Nos.1, 6 and 7, being licensees of the toddy shops, were found guilty under Sections 55(a) and (i) and 57(a) of the Abkari Act and they were convicted thereunder. Accused Nos. 1 and 6 were sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months each under Section 55 (a) and (i) of the Abkari Act. Accused No.7, being a lady, was sentenced to undergo simple imprisonment for seven years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple CRL.A.NOS.802,803,811 & 815/07 3 imprisonment for a further period of three months for the offence under Section 55(a) and (i) of the Abkari Act. Accused Nos. 1, 6 and 7 were further sentenced to pay a fine of Rs.50,000/- each and in default of payment of fine, to undergo simple imprisonment for one year each for the offence under Section 57(a) of the Abkari Act. The sentences were ordered to run concurrently. The trial court also cancelled the licences of accused Nos.1, 6 and 7 and they were disentitled from getting the licences renewed from the Assistant Excise Commissioner. The benefit under Section 428 Cr.P.C. was also allowed to the accused. The above conviction and sentences are challenged in these appeals. 3. Accused No.4 absconded and his case was split up. Accused No.1 has not filed any appeal and he is undergoing imprisonment in connection with some other Abkari cases also. 4. This Court heard the learned counsel appearing for the appellants in these appeals as well as the learned Public Prosecutor for and on behalf of the State. 5. Learned counsel appearing for the appellants in Crl. Appeal Nos. 803 and 802 of 2007 contended that there is no admissible evidence to CRL.A.NOS.802,803,811 & 815/07 4 prove that the appellants and accused No.1 were the licensees of Toddy Shop bearing Nos.55/99-2000 to 99/99-2000 of Chadayamangalam Excise Range and that there was no evidence to prove that accused No.1 had taken building No. III/455 of Kadackal Panchayat on rent as no rent deed has been produced by the prosecution. Counsel further contended that even if the entire evidence adduced by the prosecution is accepted, it would not prove the involvement of the appellants in the commission of the offence as alleged by the prosecution. Learned counsel for the appellant in Crl. Appeal No. 802 of 2007 submits that the prosecution had not adduced any evidence to show that the appellant, 7th accused, was the licensee of the toddy shop in Chadayamangalam range. Learned counsel appearing for the appellants in Crl. Appeal Nos.811 and 815 of 2007 contended that the prosecution had not produced any evidence to show that the appellants, accused Nos. 2, 3 and 5, were the employees of accused Nos.1, 6 and 7 as no documents were produced to show the employer - employee relationship between them. Counsel further contended that Ext.P8 chemical analysis report did not prove that the sample analysed contained any foreign material so as to attract an offence under Section 57 (a) of the Abkari Act. Another contention of the learned counsel was that there is no independent evidence to prove the seizure of the contraband articles as per Ext.P4 mahazar. Lastly, counsel contended that the CRL.A.NOS.802,803,811 & 815/07 5 sentence awarded against accused Nos.2, 3 and 5 is excessive. 6. The prosecution mainly relied on the evidence of the official witnesses to prove the case against the appellants. PW.8 was the Circle Inspector of Police, Kadackal who detected the offence. He stated before the court below that on 22.8.1999 at 5.50 a.m., while he was on patrol duty along with other police officials, he got information that the accused were loading spirit blended toddy in jeeps and mini lorries for the purpose of sale from the godown situated in building No.111/455 owned by PW.5 and that when they reached the building, they found two jeeps bearing registration Nos. KL-01 P-4220, KL-01-P-4427, a mini lorry bearing registration No. KL-02 D-3556 and two lorries bearing registration Nos.KL-01 K 6543 and KL-01-A-8197 parked in front of the building on the eastern courtyard. This witness further stated that though they conducted search, no contraband articles were found in the vehicles. PW.8 further stated that he prepared Ext.P3 search memo, entered the building and conducted search of the premises in the presence of PWs. 1 and 2 and found accused Nos.2 to 5 engaged in filling spirit blended toddy into samovars from synthetic tanks situated in the western enclosed veranda of the building. He further stated that when he questioned the accused , they told him that they were filling the toddy in samovars to be CRL.A.NOS.802,803,811 & 815/07 6 supplied to the toddy shops owned by accused No.1. This witness also stated that besides the four synthetic tanks of 500 litre capacity, there were spirit blended toddy in 11 samovars of 50 litres each, 8 samovars of 25 litres each and 6 jerry cans of 50 litres each and 4 jerry cans of 35 litres containing spirit. Further, PW.8 stated that he collected 99 bottles of samples, sealed and labelled the samples as well as the four jerry cans containing spirit, seized the contraband articles as per Ext.P4 mahazar and arrested accused Nos.2 to 5 on issuing Ext.P5 arrest memo. Subsequently, Crime No.256 of 1999 of Kadackal Police Station was registered against the accused. This witness further stated that the accused who were arrested were produced before the court on the next day and requisition was sent for sending the samples for chemical analysis. Ext.P8 is the chemical analysis report which shows that the samples contained ethyl alcohol. This witness also stated that on further investigation it was revealed that accused Nos.1, 6 and 7 were the licensees of the toddy shops and hence by filing an additional report, they were also arrayed as accused in the case. 7. PW.7 was the Head Constable attached to Kadackal Police Station during the relevant time. He stated that he had accompanied PW.8 while conducting search of the building and that he had found accused CRL.A.NOS.802,803,811 & 815/07 7 Nos.2, 3 and 5 standing in the room engaged in filling the jerry cans with liquor from four synthetic tanks. This witness gave evidence in support of the version given by PW.8 regarding search and seizure. PW.6, the Assistant Sub Inspector of Police, Chathannoor, who was then the police constable attached to Kadackal Police Station and who had accompanied PW.8 on patrol duty, also supported the evidence of PW.8. PWs.1 and 2 were the attestors of Ext.P4 mahazar. But, they turned hostile to the prosecution. PW.3 was the Secretary of Kalluparackal Panchayat who issued the ownership certificate in respect of the building bearing No.111/455 of Kadackal Panchayat while she was working as the Secretary of Kadackal Panchayat. 8. The prosecution also relied on the evidence of PW.4 who was the Excise Inspector, Excise Circle Office, Kottarakkara during the relevant time. He stated that he issued Ext.P2 letter to PW.8 in which he had stated that the licence of the Toddy Shops of Chadayamangalam range stood in the name of accused Nos.1, 6 and 7 on partnership basis and that the building bearing No.111/455 of Kadackal Panchayat was the depot of licence No.7/99-2000 PW.5 had given evidence before the court below that the building bearing No.111/455 belonged to him and that the building was rented out to accused No.1. PW.9 was the Sub Inspector of Police, CRL.A.NOS.802,803,811 & 815/07 8 Kadackal who conducted part of the investigation. PW.10 was the Circle Inspector of Police, Kadackal who completed the investigation, arrested accused Nos. 6 and 7and laid the charge against the accused. This witness admitted that he had not questioned either PW.7 or PW.8. On the basis of the evidence of these witnesses, the trial court found that the prosecution succeeded in proving the case against the accused. 9. It is the prosecution case that accused Nos.1, 6 and 7 were the licensees of Toddy Shop Nos.55 to 99 of Kottarakkara Excise Range and that accused No.1 had taken on rent building No.111/455 of Kadackal Panchayat as godown for the purpose of conducting the business. To prove that accused Nos.1, 6 and 7 were the licensees of the toddy shops, the prosecution relied on the evidence of PW.4 and Ext.P2. Ext.P2 reads as follows: "Attention is invited to the reference cited. The name and address of licensees Toddy shops for the year 99-2000 are furnished below. (1) Thampy, S/o. Raghavan Idayila Panthiyil veedu, Murunthal cherri, Thrikkadavoor Village, Kollam Taluk. (2) Sri. Jayaraj, S/o. Chandrasekharan, Suseelanivasil, Muttavila muri, Keezhavur Village, Neyyattinkara Taluk. (3) Smt. Sheeja, D/o. Sathy, Padinjattathil veedu, Nedumangadu Village and Taluk. CRL.A.NOS.802,803,811 & 815/07 9 A Toddy Depot licence No.7/99-2000 of Chadayamangalam Range in Building No.KP III/455 has been issued in the name of the above licensees." With regard to Ext.P2, PW.4 stated in chief examination as follows: "..................................................................... ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. .................." When this witness was cross-examined, he had stated that he does not remember the date on which he had given the statement to the police. With regard to the the time of opening of the depot, this witness stated that the licence contained the time and that he can state the time only on verification of the records. He also stated that accused No.7, the appellant in Crl. Appeal No.802 of 2007 had given the power of attorney to her husband to conduct the toddy shop. This witness further stated that he had not verified the records kept by the Assistant Excise Commissioner and CRL.A.NOS.802,803,811 & 815/07 10 that at the time of issuance of the licence, he was not under the service of the Kottarakkara Excise Range. 10. It is seen that PW.4 had no case before the court below that he had produced any documents to prove that the licence of Toddy Shop Nos.55 to 99 stood in the name of accused Nos. 1, 6 and 7. It has also come out in evidence that the Assistant Excise Commissioner was the custodian of the licence. If that be so, the production of Ext.P2 letter by itself is not a conclusive proof to show that accused Nos.1, 6 and 7 were licensees of the toddy shops in question. That apart, the prosecution had not produced any documents to show that the building in question was taken on rent by accused No.1 during the relevant time. Though PW.5, the owner of the building, stated that the building was rented out to accused No.1 on a monthly rent of Rs.1500/- on the basis of a rent deed executed in a stamp paper of Rs.50/-, he had not produced any documents in support of his statement. Further, this Court, in the decision reported in Sreedevi Amma v. Jayalakshmi,1998(1) K.L.T. 197 held that if the original of a document is not produced before the court and the reason for non -production of such a document is not explained, it can be presumed that there exists no such genuine document of which the copy has been produced. Secondary evidence is admissible only if the original is lost or CRL.A.NOS.802,803,811 & 815/07 11 in cases where it is not possible to produce the original documents. The evidence given by PW.4 would show that he was not the custodian of the licence of Toddy Shop Nos. 55 to 96 of Chadayamangalam Range. PW.4 had admitted that all the records were available in the office of the Assistant Excise Commissioner. Hence, this Court is of the view that production of Ext.P2 letter alone is not sufficient to hold that the licence of Toddy Shop Nos. 55 to 99 of Chadayamangalam Range stands in the name of accused Nos.1, 6 and 7. As per Section 65 of the Indian Evidence Act, 1872, copies of documents are secondary evidence and for accepting the secondary evidence, it has to be proved that the primary evidence is lost. This principle is enunciated in the decision of the Apex Court reported in Ashok v. Madhavlal, A.I.R. 1975 S.C. 1748 In the light of the above rulings, this Court is of the view that the findings of the trial court that the prosecution succeeded in proving that accused Nos.1, 6 and 7 were the licensees of toddy shop Nos.55 to 99 and that accused No.1 was in possession of building No.111/455 during the relevant time are not supported by any legally acceptable evidence. With regard to accused No.7, it has come out in evidence that she had given the power of attorney in favour of her husband to conduct the business. That apart, PWs.7 and 8 had admitted before the court below that accused Nos.2 to 5 had stated that they were not the employees of either accused Nos.1, 6 or CRL.A.NOS.802,803,811 & 815/07 12 7. Even if accused Nos.2 to 5 had committed any offence under Section 55(a) of the Abkari Act, accused Nos.1, 6 and 7 cannot be made vicariously liable as there is no evidence to show the employer - employee relationship between them. 11. In Ext.P4 mahazar PW.8 had recorded that accused Nos.1 to 5 were present in the premises of building No.111/455 of Kadackal Panchayat and that they were engaged in filling spirit blended toddy into samovars and tanks. It was also recorded that the spirit blended toddy was being filled in samovars to be supplied to the toddy shops owned by accused No.1. It is relevant to note that accused Nos.2 to 5 had not stated that they had any connection with accused Nos.6 and 7, the appellants in Crl. Appeal Nos.803 and 802 of 2007 respectively. 12. Further, the evidence of PWs.7 and 8 regarding the preparation of Ext. P4 mahazar and seizure of the contraband articles have not been corroborated by any independent evidence as PWs.1 and 2 who were cited and examined for that purpose turned hostile to the prosecution. Even PW.6, the Asst. Sub Inspector of Police, Chathannoor had not supported the prosecution case regarding the identity and presence of accused No.6 at the spot. Hence, the statement alleged to have been given by accused CRL.A.NOS.802,803,811 & 815/07 13 Nos. 2 to 5 that they were employed by accused No.1 itself is doubtful. In the above circumstances, this Court is of the view that the prosecution miserably failed to prove that accused Nos.6 and 7 were responsible for keeping the spirit blended toddy in building No.111/455 of Kadackal Panchayat. As the prosecution failed to prove that accused Nos.6 and 7 were in possession of spirit blended toddy at the premises of the above said building and also possession of the building in question, the finding of the trial court that they committed offence punishable under Section 57 (a) of the Abkari Act is not sustainable. 13. Apart from the above infirmity, it is seen that Ext.P8 chemical analysis report only shows that the strength of ethyl alcohol contained in the samples analysed exceeded the limit, but it is not reported in Ext.P8 that the sample contained any foreign ingredients. Variation in the strength of alcohol content in toddy is not an offence under Section 57 (a) of the Abkari Act. This question was considered by the Apex Court in the decision reported in State of Kerala v. Unni, 2007(1) K.L.T. 151 (SC) . In the above judgment, the Apex Court held that even if the strength of ethyl alcohol in toddy exceeds the limit, no offence will lie under Section 57(a) of the Abkari Act. On this score also, the finding of the trial court that accused Nos.6 and 7 committed offences punishable under Sections CRL.A.NOS.802,803,811 & 815/07 14 55(a) and (i) and 57(a) of the Abkari Act is not tenable. Hence, the finding entered by the trial court against accused Nos.6 and 7, appellants in Cr. Appeal Nos. 803 and 802 of 2007 is set aside. 14. The next question to be considered in these appeals is regarding the finding entered by the trial court in respect of accused No.2, appellant in Crl. Appeal No.811 of 2007 and accused Nos.3 and 5 who are the appellants in Crl Appeal No.815 of 2007. The prosecution case against these accused was that when PWs.6 to 8 entered the premises of building No.111/455 of Kadackal Panchayat, they saw the accused filling spirit blended toddy in samovars and tanks. The further case of the prosecution was that on questioning these accused, they stated that they were engaged by accused No.1 and that the samovars were being filled with spirit blended toddy to be supplied to the toddy shops of accused No.1. 15. It is seen that no evidence, either oral or documentary, has been adduced to prove that accused Nos.2, 3 and 5 were engaged by accused No.1. No records were forthcoming to show that these accused were the employees of accused No.1 or any other licensees. Nothing is seen recorded in Ext.P4 mahazar to show that the building in question was used CRL.A.NOS.802,803,811 & 815/07 15 by accused No.1 as godown. Further, the building is situated in Kadackal Panchayat. As per the Toddy Depot Licence Rules and the circular issued thereunder, the toddy shop depot shall be established in a central place in the tapping area enroute to the toddy shops. The prosecution had not produced any evidence to show that the building was situated within the excise range, Chadayamangalam or in a central place in the tapping area. That being so, it cannot be said that the building in question was taken on rent by accused Nos.1, 6 or 7. PWs.7 and 8 who conducted search of the building and seized the contraband articles stated that when they reached the premises of the building, they found accused Nos.2 to 5 engaged in filling spirit blended toddy in samovars and tanks and were attempting to transport the same. Though these accused admitted that they were drivers of the vehicles, PWs.7 and 8 proved that these accused were engaged in dealing with spirit blended toddy in connection with export, import, transport and transit in contravention to the provisions of the Abkari Act and the rules framed thereunder. If so, the finding of the trial court that the accused - appellants in Crl. Appeal Nos.811 and 815 of 2007 committed offence punishable under Section 55(a) of the Abkari Act is justifiable. Hence, the finding entered by the trial court against accused Nos.2, 3 and 5 is confirmed. CRL.A.NOS.802,803,811 & 815/07 16 16. What remains to be considered is whether the sentences awarded against the appellants in Crl. Appeal Nos. 811 and 815 of 2007 are excessive or not. Learned counsel appearing for the appellants in the above appeals submits that the appellants were drivers and that they were engaged by accused No.1 or some other licensee. This question was considered by the trial court and the trial court found that no circumstance was pointed out to take a lenient view. However, considering the fact that the appellants in Cr. Appeal Nos. 811 and 815 of 2007 were drivers of the vehicles and that they were engaged by some one, this Court is inclined to take a lenient view and reduce the substantive sentence of rigorous imprisonment from five years to one year each. Accordingly, the appellants in Crl. Appeal Nos. 811 and 815 of 2007 are sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo simple imprisonment for a further period of six months each. They are also entitled to the benefit under Section 428 Cr.P.C. 17. In the light of the findings entered in this judgment, accused Nos. 6 and 7, the appellants in Crl. Appeal Nos.802 and 803 respectively are found not guilty of the charges levelled against them and they are acquitted of the charges. The bail bonds executed by them shall stand CRL.A.NOS.802,803,811 & 815/07 17 cancelled. If the appellants have deposited any amount, that shall be refunded to them as per law. The conviction entered against accused No.2, the appellant in Crl.Appeal No. 811 of 2007 and accused Nos. 3 and 5, the appellants in Crl. Appeal No.815 is confirmed. Crl. Appeal Nos. 802 and 803 of 2007 are accordingly allowed. Crl. Appeal Nos. 811 and 815 are dismissed, subject to the above modification in the sentence. (K.THANKAPPAN, JUDGE) sp CRL.A.NOS.802,803,811 & 815/07 18