IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 25TH DAY OF NOVEMBER 2010/4TH AGRAHAYANA,1932 CRL.A.No. 1388 of 2010 (C) -------------------------- SC.534/2009 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY CP.18/2009 of C.J.M.,THALASSERY APPELLANT(S): ------------ RAJEEVAN,S/O.GOPALAN,C.NO.8287, CENTRAL PRISON, KANNUR. BY ADV. SAKIR K.H.[STATE BRIEF] RESPONDENT(S): -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.1388 of 2010 ----------------------------------------------- Dated 25th November, 2010. J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under Section 55(a) of the Kerala Abkari Act (for short, 'the Act'). 2. According to prosecution, on 20.6.2009 at about 3.30 p.m., appellant was found carrying a bag and proceeding along the road in front of a Mosque. On suspicion, he was apprehended by PW1, who is the Sub Inspector of Police. On examination of the bag, it was found to contain 32 bottles of Indian Made Foreign Liquor ('IMFL' for short) containing 180 ml. each. The accused had no explanation for the possession and hence, he was arrested. The arrest memo is Ext.P2. The articles were seized under Ext.P3 mahazar (in the judgment, exhibits are numbered wrongly). 3. F.I.R. was registered as Ext.P1. From the articles seized, four samples which were taken at the scene were sent for analysis to the Chemical Analyst and the report is Ext.P7. The investigation was taken up by PW5, the Additional Sub Inspector. [Crl.Appeal No. 1388/2010] 2 After investigation by PW5, a charge sheet was laid by him. 4. To prove the case, prosecution examined PW1 to PW5 and marked Exts.P1 to P8. The accused did not adduce any evidence, but contended that he was not arrested from the place, as alleged, and he is innocent of the allegations made. 5. On an analysis of evidence, appellant was convicted and sentenced under Section 55(a) of the Act to undergo two years rigorous imprisonment and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months. Set off was allowed under Section 428 of the Criminal Procedure Code (for short, 'the Code). The appellant filed this appeal from the jail and as he was undefended, Mr.Sakir K.H. was appointed as State Brief. 6. Heard both sides. Perused records. Learned counsel for the appellant submitted that the punishment imposed is for two years' imprisonment. The appellant has already suffered imprisonment for one year and six months. According to him, the conviction is not sustainable, since the material objects are not produced in court and there is no evidence to show that the residue and sample were kept in proper custody and therefore, tampering cannot be ruled out, in the light of the decision [Crl.Appeal No. 1388/2010] 3 reported in Narayani v. Excise Inspector (2002(3) KLT 725). 7. It is also argued that thondi clerk was not examined and hence, there is no evidence to show, where the articles were kept. Therefore, appellant is to be acquitted, in the light of the decision reported in Damodaran C. v. Station House Officer and another (2007(4) KHC 936), it is argued. The only independent witness examined is PW3 and he belongs to a place situated about 3.5 Kms. from the place of occurrence. No other independent witness was examined. 8. According to defence counsel, an inventory is produced but it is seen prepared on 1.12.2009, whereas the seizure is on 20.6.2009. There is inordinate delay of six months in preparing the inventory. The inventory reached the court only on 7.1.2010. This is fatal, it is submitted. As per Section 53A(1) and (2) and Section 67B, the article, as soon as after seizure, shall be produced before the authority concerned without any unreasonable delay but in this case there is inordinate delay, it is argued. 9. Learned Public Prosecutor argued that violation of Section 67B of the Act is not fatal to prosecution. The said provision only deals with the procedure for disposal of the [Crl.Appeal No. 1388/2010] 4 property by confiscation. The non-production of articles before the court is of no consequence, since an inventory is prepared in this case and marked as Ext.P9. Once an inventory is prepared as per Section 53A(5) of the Act, it shall be evidence. Therefore, non-production of the articles before the court is not fatal, it is submitted. The samples were produced before the court without delay, as evidenced by Ext.P5 property list, which reached the court on 23.6.2009. As per Ext.P6, the chemical analysis report, it was found to contain Ethyl Alcohol, it is pointed out. 10. On hearing both sides and on perusal of the records and the impugned judgment, I find that conviction was entered against the appellant for offence under Section 55(a) of the Act for illegally transporting, illegally importing and being in possession of liquor, with intention to sell. The trial court, on an analysis of the evidence in detail, held that appellant was found in “possession” of Indian Made Foreign Liquor, while illegally “importing” and his intention was to sell the same in Kerala for unlawful gain to him and therefore, prosecution proved the ingredients of Section 55(a) of the Act. 11. But, prosecution does not have a case that the accused was “importing” or “transporting” Indian Made Foreign Liquor. [Crl.Appeal No. 1388/2010] 5 The only allegation was that he was in “possession” of IMFL and hence, guilty of offence under Section 55(a) of the Act. In the charge framed by the trial court also the only allegation made was accused was in possession of IMFL. No whisper was made in the charge that appellant either “imported” or “transported” IMFL,, in contravention of the provisions of the Act. 12. “Transport,” “import” and “possession” are entirely different overt acts. Those acts are prohibited under different provisions under the Act. While “import” of liquor is prohibited under Section 6, “transport” is prohibited as per Section 10 of the Act. Even if the entire evidence let in by prosecution is accepted, mere “possession” of IMFL (as stated in the charge framed by the court) will not constitute offence under Section 55 (a) of the Act, in view of the decision of a Division Bench of this Court reported in Mohanan v. State of Kerala (2007(1) KLT 845).Therefore, the conviction of appellant under Section 55(a) of the Act cannot be sustained, especially since particulars of offence stated in charge do not disclose that possession was in the course of transit, transport etc. 13. PW1 and PW2 are the officials who are connected with the search, seizure and arrest. PW1 is the Sub Inspector of Police [Crl.Appeal No. 1388/2010] 6 and PW2 is the Head Constable. PW2 admitted that he had not signed in any of the documents relating to this case. The appellant has a case that he had not even gone to the place of occurrence and he was speaking for the prosecution at the instance of the Sub Inspector. In the cross-examination, though PW2 would claim that he had gone to the place of occurrence and stated that the incident happened in front of the Mosque, according to him, there are no shops at the place of occurrence. On the other hand, PW1, who is the Sub Inspector, who allegedly seized the articles and prepared the seizure mahazar stated that in front of the Mosque, there are shops. 14. In the light of the contradictions in the evidence of PWs.1 and 2 regarding the place of occurrence itself, it is essential that the evidence of PW1 and PW2 is scrutinized with greater care and caution. While doing so, I find that the article seized from accused are not produced before the court. No material objects are marked in this case. The prosecution would claim that 32 bottles were seized and Ext.P3 seizure mahazar will also show that item no.1 is “32” bottles. As per entries in Ext.P3, 4 more sample bottles are seized. [Crl.Appeal No. 1388/2010] 7 15. PWs.1 and 2 would claim that 32 bottles were seized from the possession of the accused and from those bottles, 4 bottles were taken as sample. If that be the case, there can only be 32 bottles, but entries in Ext.P3 reveal that there are 36 bottles in total, shown as item nos.1 and 2 in Ext.P3. PW1, who prepared the mahazar, did not explain why he had recorded in the mahazar that apart from 4 sample bottles, 32 bottles are seized. 16. Learned Public Prosecutor submitted that the accused did not challenge the above aspect and hence, non-explanation cannot be fatal. According to me, the question is not whether the accused challenged the above aspect or not. What is relevant is whether the court is satisfied from the evidence adduced as to whether only 32 bottles were seized and sample bottles taken from the said 32 bottles were sent for analysis. In the absence of production of any of the bottles before the court, the court can look only into the oral evidence and also the contemporaneous documents produced. 17. If 4 samples were drawn out of 32 bottles and sent for analysis, there cannot be a total of 36 bottles as referred to in [Crl.Appeal No. 1388/2010] 8 Ext.P3 as item nos.1 and 2. This discrepancy is unexplained. A perusal of inventory, Ext.P9 reveals that the number of bottles are only 28 and not 32, as stated in Ext.P3. If 32 bottles are seized, apart from 4 sample bottles, 32 bottles must have been sent for preparation of inventory, as referred to in Ext.P3. 18. Thus, there is a serious discrepancy in respect of number of bottles seized and the samples sent for analysis which ought to have been explained by prosecution. This has not been done. It is true that Section 53A of Abkari Act lays down that any Court trying an offence under this Act shall treat the inventory as primary evidence in respect of such offence. As per Section 53A, where any notified liquor is seized under the Act, the authorised officer shall prepare an inventory of such liquor showing the details etc. A reading of Section 67B of the Abkari Act shows that the officer seizing and detaining the property has to produce the article before the authorised officer. It is such property, on such production before the authority under Section 67B that an inventory is to be prepared under Section 53A(2). 19. In this case, the seizing officer (PW1) has no case that he had produced the articles seized in this case before the authorised officer under Section 67B. As per Sub-section (2) of [Crl.Appeal No. 1388/2010] 9 section 53A of Abkari Act the authorised officer shall make an application to the Magistrate to allow drawing representative samples of such liquor in the presence of such Magistrate and shall certify the correctness of any list of samples drawn. But, such mandate is not complied with the authorised officer in this case. 20. Therefore, the inventory prepared in this case as Ext.P9 is not prepared in conformity with Section 53A read with Section 67B. Hence, Ext.P9 cannot be treated as evidence as stated in section 53A(5) of the Abkari Act. It is only if an inventory is prepared in accordance with Section 53A read with Section 67B of the Act that it can be treated as primary evidence, as stated in Section 53A(5). It is also to be borne in mind that the discrepancy relating to the number of bottles stated in Ext.P3 and Ext.P9 remains unexplained and there is no clinching evidence to show that the inventory prepared in this case was in respect of the article seized by PW1 under Ext.P3. 21. Learned Public Prosecutor argued that the non- production of the articles before the authorised officer under Section 67B, preparation of inventory etc. will not affect the prosecution case adversely, since the provision contained in [Crl.Appeal No. 1388/2010] 10 Section 67B refers to the procedure to be followed in confiscation by the abkari officers. The trial will not be vitiated for the reason that there is discrepancy in the preparation of Ext.P9, it is submitted. 22. On the facts of this case, I am unable to accept the above argument. The question before this Court is whether 32 bottles were seized from the possession of the accused and out of such articles, four samples were taken, as alleged by the prosecution and whether those samples contained liquor as per the report of Chemical Analyst. In the light of the various discrepancies in evidence, which are already discussed, I am unable to conclude, in the absence of acceptable materials before the court, that 32 bottles of Indian made foreign liquor were seized from the possession of the appellant and samples were drawn from such bottles. 23. The number of bottles in Ext.P3 and Ext.P9 do not tally. If entries in Ext.P3 are accepted, samples sent for analysis cannot be treated as those taken out of the 32 bottles which were seized. If, as stated in Ext.P3, 32 bottles were seized apart from 4 samples, it is not explained in evidence why only 28 bottles reached the Deputy Commissioner for preparation of inventory. [Crl.Appeal No. 1388/2010] 11 There is also discrepancy in the evidence of PW1 and PW5 regarding circumstances under which the articles seized in this case reached PW5 and the authorised officer for preparing inventory. 24. While PW1 deposed that the bottles were kept in his custody in the Police Station, even after investigation was taken over by PW5, there is no evidence to show how the articles reached PW5 or the authorised officer. PW1 has no case that those were handed over to PW 5 or Dy. Superintendent of Police. PW5 did not say how he got the articles which were sent for preparation of inventory. PW5 has no case that he got it from PW1. The court cannot, in the absence of evidence, presume that the articles sent for preparation of inventory and those seized under Ext.P3 are same. In such circumstances also, doubt is cast whether samples were taken from the bottles allegedly seized from accused. 25. Learned Public Prosecutor tried to explain by stating that the entries in Ext.P3 could be a mistake. But, in the absence of any explanation from the side of the witnesses while giving evidence, I am not inclined to accept the explanation now given. It is for the officials to explain the discrepancy and learned Public [Crl.Appeal No. 1388/2010] 12 Prosecutor cannot request the court to accept any explanation to his choice which will suit the prosecution case, especially in the absence of explanation from the relevant witnesses examined in court. 26. It is also to be mentioned in this context that a procedure is laid down for production of the contraband articles, if those are notified under Section 53A of the Act. The article in this case is Indian made foreign liquor and it is a notified liquor under the said Section. The procedure laid down mandates that the articles shall be produced by the Seizing Officer before the authorised officer who is bound to prepare an inventory and make an application for drawing the sample etc. Section 53A contains procedural safeguards which cannot be ignored by the officers. The provisions in Section 67B and 53A are not intended to be followed. 27. In the light of the above discussion, I find that the prosecution failed to establish its case beyond reasonable doubt and conviction and sentence passed against the appellant under Section 55(a) of Abkari Act are unsustainable and those are liable to be set aside. In the result, the following order is passed: 1) The conviction and sentence passed against the [Crl.Appeal No. 1388/2010] 13 appellant under Section 55(a) of Abkari Act are set aside. 2) The appellant is found not guilty of offence under Section 55(a) of Abkari Act and he is acquitted of the said offence. 3) He is set at liberty forthwith. This Appeal is allowed. Sd/- K. HEMA, JUDGE. tgs/Krs.