IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 596 of 2002() --------------------------------- SC.122/2000 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE .................... APPELLANT/ACCUSED IN SC.122/2000. ------------------------------------------------------- K.V. RAMACHANDRAN, S/O.KRISHNANKUTTY, KANDACHANTEVIDE, PAKKAYIL, VADAKARA AMSOM,DESOM, VADAKARA TALUK. BY ADV. MR.K.B.GANGESH MR.JOE JOSEPH KOCHIKUNNEL RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 596 OF 2002 = = = = = = = = = = = = = = = Dated this the 11th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Fast Track Court, Adhoc-II, Kozhikode in S.C.122/00. The accused was charge sheeted for an offence u/s 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of six months. Set off was also allowed for the remand period. Learned counsel for the appellant would submit that the appellant/accused is no more. But since the conviction is that of imprisonment and fine and the appeal shall not abate, the case has to be disposed of on merits. 2.The points that arise for determination are: (1)Whether the materials are sufficient to convict the accused u/s 55(a) of the Abkari Act and Rule 9 of the Crl. Appeal NO. 596 OF 2002 -:2:- Foreign Liquor Rules? (2) In case of guilt, is the sentence excessive? Points 1 and 2: 3. The learned counsel for the appellant helped the Court though his client is not alive to look into the matter and also the Prosecutor. It is the case of the prosecution that on 13.11.98 at about 12.30 in the noon the accused was found carrying three bottles of 375 ml Highwards Fine Brandy and three bottles of 375 ml golden star brandy and four bottles of 180 ml golden star brandy while he was travelling in a bus bearing Reg.No.KL8/E 2232 through the public road. The Excise party stopped the bus and found the accused sitting on the back side of the bus asked him to open the cover and found the above bottles of liquor. It is also stated that the said bottles were being transported from Mahe which is in the Pondicherry State and there was no seal of the Beverages Corporation and therefore the accused has committed the offence. 4. The learned counsel had taken me through the evidence as well. PW1 is the Excise Inspector who had detected the offence. He had stated that the party has Crl. Appeal NO. 596 OF 2002 -:3:- stopped the bus and had found the accused sitting with these bottles on the back seat of the bus with a paper packet. He was asked to get down and it was examined and it was found to be brandy. The samples were taken and sealed and the remaining bottles were also taken into custody. Later the crime was registered, the material objects were produced before Court and the sample was sent for chemical analysis which revealed that it contained ethyl alcohol by percentage. A very lengthy cross examination had been done but nothing serious has been brought out in the cross examination. It is suggested that though passengers were there in the bus so many questions were put with respect to the preparation of mahazar etc. but nothing is seen elicited to make it unbelievable the version of PW1. 5. PW2 is another witness who was a party to the seizure. He had also deposed about the way in which the accused was apprehended from the bus and the bottles were taken possession from him and the sampling and sealing was done and also produced before the authorities. He is also subjected to a very severe cross examination but nothing is brought out to discredit his evidence. PW3 is the conductor of Crl. Appeal NO. 596 OF 2002 -:4:- the bus who admits his signature in the seizure mahazar but would pretend that he does not know from whom the liquor was seized. He was declared hostile to the prosecution. PW4 is the Village Officer who had prepared the sketch. PW5 is an independent witness who had also turned hostile to the prosecution who was the driver of the bus at the relevant time of the incident. PW6 is the person who had completed the investigation and laid the charge. 6. Learned counsel for the appellant first would contend before me that the independent witnesses namely PW3 and 5 had turned hostile and therefore the Court should not accept the evidence of the official witnesses. This matter came up for consideration before this Court in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9). In that decision the Court observed that independent witnesses are turning hostile for the reasons best known to them. Then the Court proceeded and held that the evidence of official witnesses can be accepted when they stand to meticulous scrutiny. If the Court is able to find that the evidence is trustworthy and reliable there is no wrong in accepting that evidence. Here as stated by me earlier PWs.1 Crl. Appeal NO. 596 OF 2002 -:5:- and 2 had been subjected to very severe cross examination. It has come out in evidence that the accused was travelling in the bus, the bus had been stopped and liquid seized. The incident had taken place in the broad day light. The accused had been apprehended and arrested. There cannot be any dispute regarding the identity. The bottles were seized from which the sample is taken properly and sent for chemical analysis. Nothing is there to show that their evidence cannot be accepted. So that argument of the learned counsel is not acceptable. So far as the other evidence is concerned the seizure has been done properly, sampling has been done properly and it has been produced before Court in time and it had been sent for chemical analysis and the result is against the accused. So I find that all the ingredients are satisfactorily proved. 7. Now the next question is whether he can be convicted u/s 55(a) of the Abkari Act. S.55(a) of the Abkari Act deals with only illegal import, export, transport, transit etc. A Division Bench of this Court held in Mohanan v. State of Kerala 2007 (1) KLT 845 that S.55(a) is applicable only if persons illegally imports or transport liquor or in possession of Crl. Appeal NO. 596 OF 2002 -:6:- liquor while illegally importing. Admittedly the bottles were not expected to be sold in the State of Kerala and it does not bear the seal of the Beverages of Corporation. The liquor was transported from a neighboring State namely Pondicherry to the State of Kerala. Therefore it is evident that the possession has been while illegally transporting. So S.55(a) will squarely apply in this case and therefore the accused has to be found guilty under that Section. 8. Now turning to the imprisonment part of the sentence is concerned, as the appellant is dead, the sentence of imprisonment shall abate. The Section mandates imposition of fine of Rs.1,00,000/- and no discretionary power is given to the Court for dispensing with the realisation of fine of amount of Rs.1,00,000/-. It has been held by the Hon'ble Supreme Court in Harnam Singh v. State of H.P. AIR 1975 S.C.236 that every appeal against conviction abates on the death of the accused except an appeal from a sentence of fine. So what can be done in this case is that the legal representatives of the deceased will be liable so far as the property which relates to the property of the deceased and which have been inherited by them from their father and nothing else. Crl. Appeal NO. 596 OF 2002 -:7:- 9. Therefore the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 55(a) of the Abkari Act is sustained. 2) Since the appellant/accused is no more the question of imprisonment does not arise and as far as the realisation of fine amount of Rs.1,00,000/- is concerned the amount can be realised from the assets of the deceased which is in the hands of the legal representatives of the deceased as envisaged by law. No default sentence can be imposed on the legal representatives. It is made further clear that the personal property of the legal representatives cannot be proceeded with for the realisation of the fine amount. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 596 OF 2002 -:8:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 596 OF 2002 = = = = = = = = = = = J U D G M E N T 11th August, 2009