IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 CRL.A.No. 73 of 2003() ---------------------- SC.336/2001 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT/ ACCUSED: --------------------- PRAKASAN, S/O.PANDIKATHIPURAKKAL KESAVAN AYODE DESOM, PANANCHERY VILLAGE, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SMT.REHNA.P.G RESPONDENT/ COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR K.S SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No.73 of 2003 -------------------------- Dated this the 2nd June, 2011 J U D G M E N T This appeal arises from conviction and sentence passed against the appellant by the Additional Sessions Judge, Thrissur under Section 58 of the Kerala Abkari Act (hereinafter referred to as “Act”) to undergo rigorous imprisonment for two years and to pay a fine of Rs.One lakh and in default to undergo rigorous imprisonment for a further period of six months for the offence under Section 58 of the Act. Set off was also allowed under Section 428 of Code of Criminal Procedure. 2. A charge was laid by the Excise Inspector against appellant for offence under Section 55 (a) and (i) of Act on the allegation that he was found in possession of 40 bottles of Indian made Foreign Liquor (Pampa-D XXX Rum). The offence was detected on 28.4.1998 at 2.30 p.m. While PW1 and Excise Party were on patrol duty, accused was found carrying a sack on his shoulder in front of Co- operative Milk Society. On suspicion, the accused was intercepted and the sack on inspection was found to contain Crl.A No.73 of 2003 2 20 bottles of 750 ml and 20 bottles of 375 ml each of Indian made Foreign Liquor. Accused had no explanation and hence he was arrested from the spot and articles were seized. Samples were taken. A case was registered and on investigation a charge-sheet was laid against the appellant. 3. Prosecution examined PWs1 to 6 and marked Exts.P1 to P9 and MO1 series to MO3 to prove its case. Accused denied the allegations and while questioning under Section 313 Cr.P.C contended that a lorry with liquor bottles had overturned at Kallidukku. The people of the locality had collected liquor bottles. Accused had also collected some liquor bottles. But he is implicated falsely in this case since some bottles were found kept under a culvert near his house by some unknown persons. He was arrested at a distance of 3kms away from the place, where the lorry overturned. 4. The trial court believed the evidence of official witnesses and found that the accused was in possession of 40 bottles of Indian made Foreign Liquor and hence he is guilty of offence under Section 58 of the Act. A charge was framed against the appellant under Section 58 of the Act. Crl.A No.73 of 2003 3 5. Heard both sides. Perused the records. The charge framed against the appellant reads as follows: “That you the accused on 28.4.1998 at 2.30 p.m. at the Kallidukku-Pathamkallu road in front of Co- operative Milk Society, Thanippadam, Panamchery Village of Thrissur Taluk were found in possession of 20 bottles of 750 ml each and 20 bottles 375 ml each pampa -D XXX Rum kept in a sack and thereby committed the offence under Section 58 of the Abkari Act” 6. A reading of the charge itself shows that the appellant was prosecuted for mere possession of 40 bottles of Indian made Foreign Liquor. There is no allegation in the charge or in the evidence that the accused possession of Indian made Foreign Liquor was with the knowledge that the contraband articles were unlawfully imported, transported or manufactured or duty tax/rental payable under the Act was not paid. 7. The main ingredient of the offence under Section 58 is the relevant knowledge as referred to in Section 58. But in the absence of any allegation and also evidence to show that there was requisite knowledge by accused, conviction under Section 58 of the Act is not sustainable, as argued by the learned defence counsel. Crl.A No.73 of 2003 4 8. Learned Public Prosecutor, however, argued that the evidence of the official witnesses amply proves the Act. Accused was in possession of 40 bottles of Indian made Foreign Liquor and hence appellant can be convicted under Section 63 of the Act. However, it is conceded that in the light of the Division Bench decisions of this Court, mere possession of Indian made Foreign Liquor will not be an offence under Section 55 (a) unless such possession was in the course of illegal import etc., as referred to in the decisions stated by the learned defence counsel [ Mohanan Vs. State of Kerala [2007 (1) KLT 845] & Surendran Vs. Excise Inspector [ 2004 (1) KLT 404]. 9. Learned defence counsel argued that the accused was falsely implicated in this case on getting some liquor bottles in an abandoned manner which were kept underneath a culvert but the accused was not found carrying such liquor as alleged by the prosecution. It was argued that independent witnesses turned hostile and they specifically stated that accused was not in possession of any liquor. It is also argued that accused contended that liquor bottles were taken away by various persons including Crl.A No.73 of 2003 5 himself when the lorry overturned. 10. According to the accused, the lorry which overturned came from Pampady and PW3 admitted that “ a brandy lorry had overturned”. PW1 the official was cross- examined on this respect, but he plead ignorance. In such circumstances, the evidence of PW1, the Detecting officer and PW4 the Preventive Officer may not be accepted, it is argued. It is also pointed out that the articles allegedly seized from the possession of the accused were having the label containing the details of Pampady Distillery. 11. PW1 admitted that the Indian made Foreign Liquor was manufactured from the distillery at Pampady and the said fact is revealed from the label. It is also admitted by the official witnesses in evidence that no sticker of the Kerala State Beverages Corporation were seen on the bottles. These facts will sufficiently support the defence case, it is argued. 12. Learned Public Prosecutor submitted that if there was an accident as alleged by accused, it is for the accused to prove the same. But there is only an allegation that a lorry had overturned. In such circumstances, the conviction Crl.A No.73 of 2003 6 may not be set aside on the mere suggestion made by the accused, it is submitted. 13. On hearing both sides and on going through the records, I find that as per the admissions made by PW1, the detecting officer and other officials, bottles of Indian made Foreign Liquor allegedly seized from the possession of appellant contained the labels of Pampady Distillery. It did not contain the stickers of the Kerala State Beverages Corporation. It is also admitted that the articles were manufactured at Pampady Distillery. Therefore, the inference is that the articles manufactured at Pampady Distillery came to the possession of the accused, before it reached the Kerala State Beverages Corporation. 14. But, no investigation is done as to how such bottles came to the possession of appellant. It is only reasonable to infer that any Investigating Officer will have the anxiety to know from the source from where the appellant obtained possession of 40 bottles of Indian made Foreign Liquor which is manufactured at a particular distillery and which had not reached the Kerala State Beverages Corporation. The accused would contend that Crl.A No.73 of 2003 7 such bottles were available on the road since the lorry overturned and people of the locality had also picked up the bottles. If an investigation had been done, it would have been possible to find out whether such bottles were procured by the accused by theft or by purchasing the same from illegal source. 15. When a question was put to PW1, the Detecting Officer whether he knew that liquor lorry had overturned at Pampady he stated that he did not know. However, PW3 the independent witness stated that such lorry had overturned. Merely because PW3 did not support the prosecution case, his evidence cannot be discarded especially since it is corroborated by circumstance like label showing that the liquor was manufactured at Pampady etc. PW3 admitted the signatures in Ext.P1 and 2 but stated that he did not see the Excise Officials seizing liquor from the accused. He was not confronted with any previous statement and it cannot be said that his evidence is dis-credited for the sole reason that it contradicts the evidence of official witnesses. 16. In the light of the evidence, admissions made by PW1 that the contraband articles were manufactured in Crl.A No.73 of 2003 8 Pampady Distillery and the evidence of PW3 a brandy lorry had overturned, the defence version cannot be brushed aside lightly. It is true as argued by the learned Public Prosecutor, the admissions are not sufficient to prove the case set up by the accused. However, in the facts and circumstances of this case, the absence of investigation into the source of liquor casts a reasonable doubt that PW1 was suppressing a material aspect in relation to the case. 17. It is only reasonable that any Excise Official will ascertain the source from where the articles were obtained particularly since those articles are manufactured in a Distillery in Kerala itself and those did not even reach the Kerala State Beverages Corporation. Failure or omission on the part of PW1 to make such investigation also raise a doubt whether he was suppressing a material fact relating to the case. It is true that on a plain reading the evidence of PW1 and PW4 the official witnesses who were examined to prove the occurrence were not shattered in cross- examination, but certain aspects were brought out from their evidence, which on the facts of this case, would raise a reasonable doubt regarding suppression of a material fact in Crl.A No.73 of 2003 9 this case. 18. This is confirmed further, when the evidence of PW2 and 3 is looked into. PWs 2 and 3 are independent witnesses who did not support the prosecution case and stated that they did not see the Excise Officials seizing liquor from the possession of the accused. PWs 2 and 3 deposed that they signed Exts.P1 and P2 from the Excise Office and not as alleged by PW1 and 4, the Excise Officials. Though PW2 and 3 gave evidence against prosecution, no attempt is seen made to discredit their evidence with respect to the earlier statements given to the police officials. 19. The evidence of PW5 shows that PW2 and PW3 were summoned to the Excise Office and this can be only for recording their statement. In such circumstances, there is no reason to reject the evidence of PWs 2 and 3 which is inconsistent with the version given by the officials in this case. Taking all these facts into consideration, I find that a reasonable doubt is cast on the circumstances under which the accused was implicated in this case and hence the appellant cannot be convicted under Section 58 or 55 (a) or even Section 63 of Abkari Act. The conviction and sentence Crl.A No.73 of 2003 10 are unsustainable. At any rate, the conviction under Section 58 of Kerala Abkari Act cannot be sustained. In the result, the following order is passed. (i) The conviction and sentence passed against the appellant under Section 58 of the Abkari Act are set aside. (ii) The appellant is found not guilty of offence under Section 58 of the Abkari Act and he is acquitted of the said offence. (iii) The appellant is set at liberty forthwith. The appeal is allowed. (Sd/-K.HEMA, JUDGE) ma /True copy/ P.A to Judge Crl.A No.73 of 2003 11