IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 1038 of 2011() ------------------------------------- CP.166/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KASARAGOD .................... PETITIONER/ACCUSED --------------------------------- JOSY SALDANA, S/O. LATE SALVODAS SALDANA, 1/56, OLIVE VILLA, PEDHAMALA. P.O, MANGALAPURAM, KARNATAKA STATE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/COMPLAINANT/STATE ------------------------------------------------------ 1. C.I OF EXCISE, SPECIAL SQUAD, KASARAGOD - 671 314. 2. ASSISTANT EXCISE INSPECTOR, EXCISE CHECK POST, BANGARA, MANJESWARAM, KASARAGOD - 671 322. 3. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R3 BY PUBLIC PROSECUTOR MR.V. MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 1038 of 2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE I: COPY OF THE FINAL REPORT. ANNEXURE II: COPY OF THE OCCURRENCE REPORT. RESPONDENTS ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No..1038 of 2011 --------------------------------------- Dated this 21st day of June, 2011 ORDER Petitioner is accused in O.R.No.14 of 2005 of Kumbla Excise Range for offences punishable under Sec.55(a) and 64A of the Abkari Act (for short, "the Act”). Case is that on 20.04.2005 the Assistant Excise Inspector found 8225 liters of spirit being transported in a lorry (of which petitioner is said to be the registered owner). It is stated that the driver of the vehicle and his helper made their escape good on the Excise party intercepting the said vehicle. The Assistant Excise Inspector seized the contraband and prepared a mahazar for the same. The Circle Inspector of Excise, Kasargod investigated the case and filed final report against petitioner for offences as above stated. Learned Judicial First Class Magistrate-I, Kasargod took cognizance of the said offences against petitioner and filed C.P.No.166 of 2010. The said proceeding is under challenge in this petition filed under Sec.482 of the Code of Criminal Procedure (for short, "the Code”) on various grounds. At the time of argument, learned counsel has confined his argument to the legality in prosecution of petitioner on the ground that he has Crl.M.C.No.1038 of 2011 -: 2 :- been implicated in the case merely for the reason that he is the registered owner of the vehicle. Learned counsel contended that the prosecution seeks the aid of Sec.64A of the Act to rope in petitioner, but that provision has no application to a vehicle. It is argued by the learned counsel that in so far as there is no material to show that petitioner was travelling in the vehicle in question or, was in any other manner in possession of the contraband, he could not be prosecuted for offence under Sec.55 (a) of the Act. Reliance is placed on the decisions of this Court in Rajan Vs. State of Kerala (2004(2) KLT 430) and Hassanar Vs. State of Kerala (2008(1) KLT 921). Learned Public Prosecutor has contended that being the registered owner of the vehicle, petitioner is answerable to the offence under Sec.55(a) of the Act assuming that Sec.64A has no application. It is pointed out by learned Public Prosecutor that from the facts and circumstances the Investigating Officer has drawn is an inference that petitioner is one among the persons who had ran away from the vehicle at the time of its seizure. It is also submitted by learned Public Prosecutor that in the course of investigation the Investigating Officer had issued notice to the petitioner being the registered owner to appear before the said officer but petitioner Crl.M.C.No.1038 of 2011 -: 3 :- evaded. These circumstances according to learned Public Prosecutor are sufficient to show that petitioner had the requisite knowledge that the contraband was being transported in the vehicle in question. 2. Sec.55(a) of the Act deals with importing, exporting, transporting, transiting or possessing liquor or any other intoxicated drug in contravention of the provisions of the Act or the rules made under the Act. The allegation in the present case is one of transporting of illicit spirit. In the crime and occurrence report, it is stated that since the driver and his helper had made their escape good they could not be arrested. That is the first version given by the Assistant Excise Inspector who is said to have detected the offence. In the final report there is no case that petitioner was travelling in the vehicle at the time of incident. It is also not stated that he is one among those who ran away from the vehicle. On the other hand, the allegation is only that petitioner is arrayed as accused as verification of registration certificate seized from the vehicle revealed that he is the registered owner of the said vehicle. It is also stated that as registered owner, notice was issued to the petitioner but it was not claimed. On investigation it was revealed that petitioner is Crl.M.C.No.1038 of 2011 -: 4 :- absconding. In the circumstances, the Investigating Officer was convinced that petitioner has committed the offences punishable under the Act. 3. The presumption or inference that the Investigating Officer has drawn is not sufficient to implicate petitioner. Investigating Officer in the course of investigation of a case may come across several materials – information that the witnesses have given him, what the Investigating Officer has seen at the spot or the inference that the Investigating Officer has drawn from what he saw or, he was told. Of the above, what is admissible as evidence is only what the Investigating Officer has seen. Hence whatever inference or presumption that the Investigating Officer may have drawn cannot be said to be evidence in the case. 4. Now turning to Sec.64A of the Act, that provision provides for penalty for allowing any land, building, room, space or enclosures to be used for manufacture, sale or storing for sale of liquor or intoxicating drug in contravention of the provision of this Act or any rule or order made thereunder. In the present case, allegation is one of transporting of spirit in a vehicle which does not come within the ambit of Sec.64A of the Act. Apart from Crl.M.C.No.1038 of 2011 -: 5 :- that, this Court held in the decisions referred supra that a 'vehicle' is not a 'space' coming within the scope of Sec.64A of the Act. Hence by virtue of petitioner being the registered owner of the vehicle in which spirit was (allegedly) being transported, Sec.64A of the Act cannot be applied against petitioner. 5. The case in Rajan Vs. Excise Inspector (supra) is similar to the facts of the present case. There, two persons were found riding a scooter and on seeing the Excise party, they escaped leaving the scooter. The scooter was found to contain illicit liquor. The second accused in that case was proceeded against by the excise officials for the reason that he is the registered owner of the scooter. This Court observed that the only allegation against the accused in that case was that he was the registered owner of the vehicle. There was no other allegation against him. Hence the charge against him under Secs.55(a) and 64A of the Act was found unsustainable. In Hassanar Vs. State of Kerala (supra) it was held that petitioner therein could be roped in for the offence under Sec.55 (a) of the Act only if he was having control over the vehicle in question and that Sec.64A of the Act cannot be applied. Crl.M.C.No.1038 of 2011 -: 6 :- 6. I stated that in the crime and occurrence report what is stated is that the driver and helper ran away from the vehicle. I also referred to the allegation made in the final report and the circumstances under which the Investigating Officer implicated petitioner as accused. There is no case in the final report that petitioner was travelling in the vehicle at the time of incident. It is not shown that any of the prosecution witnesses had identified petitioner as the helper who allegedly ran away from the vehicle. Instead, petitioner is implicated in the case only for the reason that he was the registered owner of the vehicle at the relevant time, he did not respond to the notice issued to him in that capacity and he (allegedly) absconded. The principle of vicarious liability cannot be extended to penal law unless if is specifically made applicable. Here, to attract such liability, Sec.64A of the Act is relied. That provision, I found has no application to a vehicle. Sec.64 of the Act also cannot apply as petitioner was not in possession of the contraband. 'possession' referred to in Sec.64 should be conscious possession of the contraband. Just as a vehicle which is used for commission of the offence could be confiscated under Sec.67B of the Act throwing burden of proof on the owner of the vehicle that he did not have the requisite Crl.M.C.No.1038 of 2011 -: 7 :- knowledge (Secc.Sec.67C(2) of the Act), he cannot be prosecuted for the offence under Sec.55(a) for the mere reason that he is the registered owner of the vehicle. If that be so, the charge against petitioner cannot be sustained. Resultantly this criminal miscellaneous case is allowed. The proceeding against petitioner in C.P.No.166 of 2010 of the Court of learned Judicial First Class Magistrate, Kasaragode is quashed. It is made clear that this order will not stand in the way of the appropriate authority proceeding with the proceeding (if any) for confiscation of the vehicle in question as provided under the law. (THOMAS P JOSEPH, JUDGE) Sbna/-