IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRL.A.No. 648 of 2003() ----------------------- SC344./2001 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANTS/ACCUSED: --------------------------- 1. PHELIX TELIX, AGED 25, S/O. LADIN TELIS, BETTUGUDDA HOUSE, KOLIYOOR VILLAGE, KASARAGOD TALUK. 2. FRANCIS TELLIS, AGED 38, S/O. LADIN TELIS, PANJEKODI HOUSE, KOLANAD VILLAGE, BANTWAL, KARNATAKA STATE AND NEW RESIDING AT BETTUGUDDE, KOLIYOOR, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN SMT.T.D.RAJALAKSHMI RESPONDENTS: STATE AND COMPLAINANT: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. STATION HOUSE OFFICER, MANJESHWAR POLICE STATION, MANJESHWAR. BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.No.648 of 2003 ========================== Dated this the 19th day of March, 2008 JUDGMENT The two appellants in this appeal were tried for offences punishable under Section 55 (a) and Section 64 A of the Abkari Act respectively before the Additional Sessions Judge's Court (Adhoc-I) Kasaragod. The trial court found the appellants guilty of the respective offences alleged against them. Accordingly accused No.1 was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months. Accused No.2 was convicted and sentenced to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for two months under Section 64 A. 2. The prosecution case in brief was that on July 2, 2000 at about 4.10.a.m accused no.1 was found transporting 18 bottles (each containing 750 ml.) of Indian made foreign liquor (Choice Deluxe Whiskey) in a scooter bearing registration No.KA 19/L-2346 through Hossangadi-Sungathkatta road. PWs.1 and 2 had apprehended accused No.1 with the contraband in his Crl.A.648/2003 2 possession at Aribayal in Kadambar Village. Accused No.2 was arraigned in the case since he was the registered owner of the vehicle at the relevant point of time. PWs.1 and 2 were examined and Exts.P1 to P7 and MO1 to MO4 were marked on the side of the prosecution. DWs.1 and 2 were examined and Exts.D1 and D2 were marked on the side of the defence. The learned Sessions judge after evaluation of the oral and documentary evidence on record found that the prosecution had succeeded in proving the charge against the two accused. 3. PW1, the Police Constable attached to Manjeshwar Police Station, deposed before the court that he along with another constable was on patrol party led by the Sub Inspector. While checking vehicles on the road, they found accused No.1 coming on a motorcycle carrying a gunny bag. On intercepting the vehicle and examining the bag it was found that the accused had been carrying 18 bottles (750 ml. each) of Indian made foreign liquor. Two of the above 18 bottles were sealed and taken as sample for the purpose of analysis. Ext.P1 seizure mahazer was prepared in which PW1 had signed as a witness. The remaining 16 bottles were seized under Ext.P1 Mahazer. After completing the other formalities accused No.1 was Crl.A.648/2003 3 arrested. PW2, the Sub Inspector corroborated the evidence given by PW1 as far as interception, taking of sample etc. were concerned. 4. It is contended by the learned counsel that the court below had committed serious illegality in holding the petitioners guilty. As regards the conviction of accused No.1 it is pointed out by the learned counsel that the order suffers from serious illegality and irregularity in as much as the Detecting Officer had taken samples from only two out of the 18 bottles which were allegedly recovered from the accused. In other words the total quantity of sample taken was only 1500 liters which of course was found to have contained Ethyl Alcohol. Even assuming the two bottles contained Indian Made Foreign Liquor, accused No.1 could have kept 1.5 litres of Indian Made Foreign Liquor at the relevant point of time. Since the prosecution had not established that other bottles also contained Indian Made Foreign Liquor or any other liquor, accused No.1 could not have been convicted under Section 55 (a). Learned counsel has invited my attention to a decision of this Court in Krishnankutty v. State of Kerala (2005 (3) KLT 568) in which a similar question had come up for consideration. The learned single Judge in that case held Crl.A.648/2003 4 that if the prosecution failed to take sample from all the bottles which were allegedly recovered from the possession of the accused the accused was entitled to be given the benefit of doubt, especially if the seized quantity was within the permissible limits. From the facts available in the case on hand, I am satisfied that the petitioner is entitled to get the benefit of the above decision. 5. The learned Public Prosecutor contended that the contraband liquor was obviously meant for sale only in Karnataka State. Therefore petitioner had violated Rule 9 of the Foreign Liquor Rules and thus he was liable to be convicted under Section 55(a). But as rightly pointed out by the learned counsel for the appellants no charge under Rule 9 was laid against accused No.1 and therefore he could not have been held guilty for violating Rule 9. Further it is pointed out by the learned counsel that there was no evidence to show that the contraband liquor was meant for sale only in Karnataka State. 6. It is also pointed out by the learned counsel that the prosecution had not explained the delay in forwarding the contraband to the court. There was also no evidence to show that the contraband had been kept in safe custody after the Crl.A.648/2003 5 seizure. It had come out in evidence that the bottles containing contraband liquor were forwarded to the court only on July 4, 2007 though the alleged seizure was on 2nd of July. It is significant to note that PW1 had admitted that only the sample bottles were sealed at the time of seizure. No seal was affixed on the remaining 16 bottles. Therefore, I find considerable force in the contention raised by the learned counsel absence of any evidence to show that the contraband was kept in police station in safe custody there was no guarantee the same contraband had been produced before the court particularly since the contraband had reached the court after two days of the alleged seizure. Thus having regard to the entire facts and circumstances and following the decision in Krishnankutty's case, I am satisfied accused No.1 is entitled to get an order of acquittal. 7. Accused No.2 was found guilty under Section 64 A of the Act on the allegation that he was the registered owner of the motorcycle in which the alleged contraband was transported. Section 64 A reads thus: “Penalty for allowing land, building, room, etc., for manufacturing sale or storing for sale of liquor or intoxicating drug:- Notwithstanding anything contained in this Act, or in any other law for the time Crl.A.648/2003 6 being in force, any owner or occupier or person having control of, any land, building, room, space or enclosure, permits any person to use such land, building, room, space or enclosure for manufacture, sale or storing for sale of liquor or intoxicating drug in contravention of this Act or of any rule or order made thereunder or of any licence or permit obtained under this Act shall be punishable with fine which shall not be less than twenty- five thousand rupees unless he proves to the satisfaction of the court that all due and reasonable precautions were taken by him to prevent such use.” 8. A perusal of the provisions contained in Section 64A will undoubtedly show that a vehicle will not come within the purview of the said Section. A similar question was considered by this Court in Rajan v. Excise Inspector (2004 (2) KLT 430). In that view of the matter, accused No.2 is also entitled to be acquitted. 9. Therefore, the order of conviction and sentence passed against the appellants is set aside. Appellants are acquitted. The criminal appeal is allowed. A.K.BASHEER,JUDGE dvs