IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 CRL.A.No. 366 of 2003() ----------------------- SC.91/1999 of ADDL. SESSIONS COURT (ADHOC), THALASSERY .................... APPELLANT/ACCUSED: ------------------ CHAKKYATH CHANDRAN, S/O.KUMARAN, AGED 46 YEARS, CHAKKYATH HOUSE, CHITTARIPARAMBA P.O., MANANTHERI, KUTHUPARAMBA. VIA. KANNUR (DT). BY ADV. SRI.P.K.BALAKRISHNAN NAIR SRI.P.SURESH SRI.C.A.CHACKO RESPONDENT/COMPLAINANT: ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- CRL.A.NO.366 OF 2003 (A) ----------------------------------- Dated this the 4th day of March, 2008 J U D G M E N T KOSHY,J. Doubting the correctness of the decision of the learned Single Judge in Krishnankutty v. State of Kerala (2005 (3) KLT 568), a learned Single Judge of this Court has referred this case to the Division Bench. Before answering the reference, we shall narrate the facts of this case. 2. Appellant was convicted for the offences punishable under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules for illegal possession of more than the permissible quantity of liquor while he was travelling in a bus on 27.6.1997. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for one year more. The liquor seized from the bus allegedly from the CRA.366/03 2 possession of the appellant was 10 bottles of 180 ml. of Indian made Foreign Liquor and three bottles of 375 ml. of the same stuff. Ext.P4 seizure mahazer shows that the total quantity seized was 2.925 litres. During the relevant time, as per the foreign liquor rules, quantity that can be possessed and transported without permit was only 1.5 litres. Several contentions were raised by the appellant. First contention raised was that no liquor was found from him and he has not transported any liquor. Secondly, it was contended that even if he has transported the liquor in excess quantity, the offence will not come under the purview of Section 55(a) because he was not transporting or possessing the same in the course of import. Thirdly, it was contended that he was not in possession of excess quantity of liquor as only 0.555 litres was proved to be foreign liquor. Sample from one bottle of 180 ml. and another bottle of 375 ml. was sent for chemical analysis whereby prosecution failed to prove that other bottles seized contain Indian made foreign liquor. So the actual quantity of liquor found to be in his possession was at the maximum 375 ml. plus 180 ml. (total 0.555 litres) which is much below 1.5 litres of liquor and accused relied on the decision in CRA.366/03 3 Krishnankutty's case (supra). In the above case, sample was taken from one bottle of 750 ml. of Indian Made Foreign Liquor whereas accused was in possession of 8 bottles. The learned Single Judge held that it was established that 750 ml. of Indian Made Foreign Liquor was in possession of the accused. Since samples from other 7 bottles were not tested, it cannot be assumed that liquid in that 7 bottles were Indian made Foreign Liquor. It was argued that what is proved in this case is that he was in possession of 0.550 ml. of foreign liquor. It was not proved that other bottles contained foreign liquor, and therefore, it cannot be held that he was in possession of excess quantity of liquor, even if it is proved that the entire bottles were seized from him. 3. The learned Single Judge was of the opinion that the above view is contrary to the decision of the Apex Court in Vijendrajit Ayodhya Prasad Goel v. State of Bombay (AIR 1953 SC 247). There, the similar contention raised was not accepted. Apex Court held as follows: 5. “Mr.Umrigar next contended that only CRA.366/03 4 one bottle out of the articles recovered at the raid was sent for analysis and that it was not proved that all the bottles and the drums that were recovered from the godown contained rectified spirit. He said these might well have contained phenyle, the manufacture of which the company admittedly was carrying on in that godown. This argument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is therefore rejected.” From the godown of the accused, 108 bottles and 2 drums of liquor were seized. Only samples from one bottle was sent for analysis. The Honourable Supreme Court rejected the contention that all the bottles recovered or samples from the same ought to have been forwarded for analysis and held that seized bottles contained the same stuff. The learned Single Judge in Kishnankutty's case relied on the observations in Gaunter Edwin Kircher v. State of Goa (AIR 1993 SC 1456). In that case, two cylindrical pieces of certain article which were alleged to be “charas” were seized from the accused therein. One piece was weighing less than five grams and other was weighing seven grams. The piece weighing less than five grams was sent for analysis. It was found that it was CRA.366/03 5 charas. The Honourable Supreme Court came to the conclusion that it was proved that the small piece which was less than 5 grams alone was charas. It is only a small quantity and there is no proof that other cylindrical piece was charas as that piece or sample from that piece was not sent for analysis. We are of the opinion that all depend upon facts of each case. There is no case that the two cylindrical pieces contained any identifying mark or label to indicate that both those pieces were of same article. The nature of the article is such that it cannot be concluded without chemical examination of each of piece whether it is 'charas' or not. Even a label was not available to indicate that both those pieces were of same stuff. Anyway, in the absence of a label or any other reliable evidence to show that both the cylindrical pieces could be of the same stuff, it will be not proper to conclude positively that two identically looking articles are one and the same article. It was in such circumstances that the Honourable Supreme Court laid down in that decision that only one of the pieces which was sent for chemical examination was charas. 4. In this case, facts are totally different. Being Indian CRA.366/03 6 made foreign liquor, the articles are labelled accordingly. The bottles are sealed also. There is nothing to show that the seals are tampered with. When similar liquid is stored in different containers having labels declaring the value of contents analysis of liquid in one container is justifiable as done in Vijendrajit's case (supra). In this case, as per Ext.P4 mahazar report, what was seized was 10 bottles of branded XXX Rum. The other two bottles of 375 ml. also contained the label of Hercules XXX Rum. Bottles were sealed. Label in the bottle mentioned the contents of ethyl alcohol. All the bottles contained similar liquid. Sample from one 180 ml. bottle and one 375 ml. bottle are sent for analysis. There is no case that the other bottles are filled with water or some other liquid. The label shows that all are identical bottles and contained the same stuff (Rum). Bottles were sealed. They were seized from the bus. This is entirely different from the case of two cylindrical pieces recovered in Gaunter Edwin Kircher's case (supra). 5. Here what was seized was the branded labeled quantity of liquor. Merely because a suggestion that other CRA.366/03 7 bottles contained some other liquid, a different view need not be taken. All the bottles were labeled sealed bottles which are branded products of a known company commonly available in market. Facts of this case are similar to the facts in the decision in Vijendrajit Ayodhya Prasad Goel v. State of Bombay (AIR 1953 SC 247) and it cannot be stated that the other bottles seized contained some other liquid. There is no explanation or suggestion that other bottles contained some other liquid. In the judgment dated 16th July, 2007 in Criminal Appeal No.1674 of 2003, one of us (Koshy, J.) held as follows: “It is contended that samples of all bottles alleged to be liquor were not sent for sampling and it is not proved that entire bottles contained liquor. All the bottles were sealed and labelled and a random samples were sent for examination. Therefore, there is no reason to say that other bottles were filled with different liquids other than the one contained in the bottle sent for examination. Appellant had no such case before the police or trial court. The Indian made foreign liquor of large quantity was seized in which A1 was driving the lorry and we see no ground to interfere in the conviction under Section 55(a). Only the sample from one bottle need be taken and we are of CRA.366/03 8 the view that on the facts of this case, it cannot be stated that the other bottles contained different liquids so that it requires separate analysis of each bottle. Whether the samples from all the alleged contraband articles which are seized should be tested or not will depend upon the facts and circumstances of each case. We are of the opinion that principles laid down in Krishnankutty's case (supra) cannot be accepted as laying down a universal principle that if several similar bottles containing similar liquids are seized, samples of contents of all bottles have to be examined, and that only the article in the bottles which are checked can be taken into account. If labelled sealed bottles containing same substance are seized, checking of sample from one bottle will be enough to confirm the value of the articles in all the bottles. Similarly if large number of similarly labelled bottles purported to contain same type of article are seized, chemical examination can be done by taking one bottle or certain number of bottles selected at random. There cannot be any sweeping generalisation. Each case must be judged on its own facts by taking into account admissible evidence. CRA.366/03 9 6. As far this case is concerned, first question to be considered is whether the prosecution was successful in proving that the accused was in possession of liquor. It is true that official witnesses, PWs.1 and 2 deposed that liquor was seized from the possession of the appellant while he was travelling in the bus. But the persons who signed Ext.P4 mahazar deposed that they have not seen the seizure. They have only signed the mahazar and they denied the contents of the mahazar and PWs.3 and 4 both the independent witnesses examined were declared hostile. PW3 deposed that officials came to the bus and searched the bus and six persons including himself were asked to get down and only accused was arrested and he has not seen anything in possession of the accused even at the time when he was apprehended. It is the case of the accused while questioned under Section 313 of Cr.P.C. before the court that when the officials found out a bag which contained the above bottles beneath the seat of bus in which they were travelling and they seized the same. After seizure of the same several persons were questioned and he was arrested without any reason. From the over all reading of the evidence, it can be seen that these bottles were seized CRA.366/03 10 from the bus in which accused was travelling but there is no positive independent evidence to show that it was seized from the possession of the appellant. There were many passengers in the bus. DW1 a co-passenger was disbelieved by the Court stating that he was a friend of the accused but in cross examination no such suggestion was made to DW1. Only two questions were put in in cross examination. It has been repeatedly held by the Apex court that the defence witnesses stand in the same as of a prosecution witnesses (See Munshi Prasad and others v. State of Bihar (AIR 2001 SC 3031)). It was also held that merely because witness is a friend or relative is not a ground for disbelieving the evidence (See paragraph 26 of Dalip Singh and others v. The State of Punjab (AIR 1953 SC 364)). Here there is nothing to disbelieve DW1. After going through the entire evidence, we find that prosecution was not able to prove that MO1 to MO4 bottles were seized from the possession of the appellant. If that be so, the entire edifice of the prosecution case falls. We are of the view that charges against the accused are not proved in this case beyond CRA.366/03 11 reasonable doubt. Appellant was apprehended and charge sheeted only on suspicion as the material objects were seized from the bus in which he was travelling along with others. Therefore, conviction and sentence imposed on the appellant are set aside, and hence, appeal is allowed to the above extent. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- CRL.APPEAL.NO.366 OF 2003 (A) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th March, 2008