IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 CRL.A.No. 1514 of 2011 -------------------------------- [SC.459/2007 of THE COURT OF SESSION, KASARAGOD DIVISION [ ADDL.DISTRICT AND SESSIONS COURT (ADHOC-I), KASARAGOD] .................... APPELLANT(S): APPELLANT. ---------------------------------------- P.M.WILSON, S/O.MATHAI SCARIYA, CONVICT NO.9371,CENTRAL PRISON, KANNUR. BY ADV.SMT.SYLAJA K.S. RESPONDENT(S): ------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LOWSY.A. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1514 of 2011 ---------------------------------------- Dated this the 3rd day of November, 2011 JUDGMENT The sole accused in S.C.No.459 of 2007 is the appellant herein. In this appeal, he challenges his conviction and sentence imposed against him under Section 55(a) of the Abkari Act, vide judgment dated 18.3.2011 in S.C.No.459 of 2007 of the court of Session, Kasaragod Division (Additional District and Sessions Court (AD HOC)-I, Kasaragod. 2. The prosecution case is that on 20.5.2006 at 4.55 p.m., the accused has possessed 16 bottles, each having 375 ml. Of Indian made foreign liquor for the purpose of sale on the backside of a shop building at Bheemanadi town. With the said allegation, Crime No.64 of 2006 was registered in the Chittarickal Police Station for the said offence and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court-II, Hosdurg and the learned Magistrate, by order dated 9.5.2007 in C.P.No.39 of 2007, CRL.A.NO.1514 of 2011 :-2-: committed the case to the Sessions Court wherein the case is taken as S.C.No.459 of 2007 and subsequently, the case was made over to the trial court for disposal. On the appearance of the accused, a formal charge was framed after hearing the prosecution as well as the accused and when the charge was read over to the accused and explained the same, he denied the charge and pleaded not guilty. Consequently, the prosecution adduced evidence by examining Pws.1 to 8 and producing Exts.P1 to P9 documents. On the basis of the evidence available on record, the trial court has held that the prosecution has satisfactorily proved the offence punishable under Section 55(a) of the Abkari Act and though the offence under Section 55(i) of the Abkari act is revealed, no separate sentence is warranted for the offence as there was no charge under Section 55(i) of the Abkari Act. Accordingly, the appellant/accused is convicted under Section 55(a) of the Abkari Act and consequently, he is sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.1 CRL.A.NO.1514 of 2011 :-3-: lakh and in default, he is directed to undergo rigorous imprisonment for one year. Set off is allowed under Section 428 of Cr.P.C. It is the above conviction, finding and sentence are challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the above judgment, he preferred this appeal from the jail and on receiving the same as ordered by this Court, the Registry has appointed Advocate Smt.Sylaja.K.S. from the panel of State Brief to prosecute the appeal on behalf of the appellant. Thus, I have heard Smt.Sylaja.K.S., learned counsel for the appellant and Smt.Lowsy.A., learned Public Prosecutor for the State. 4. During the argument advanced by the learned counsel for the appellant, the learned counsel confined her argument to the effect that Section 55(a) is not attracted against the appellant/accused, even if the possession of the contraband article and its seizure are admitted. In support of her contention, learned counsel placed reliance upon the following CRL.A.NO.1514 of 2011 :-4-: decisions viz., Thomas v. State of Kerala [2005(4) KLT SN 58] and Raman v. State of Kerala [2007(4) KLT 223]. Thus, according to the learned counsel, at the most, the only offence attracted against the accused is under Section 63 of the Abkari Act and no offence is attracted. 5. On the other hand, the learned Public Prosecutor, relying upon the decisions of this Court reported in Kelukutty v. State of Kerala [2009(4) KLT 286], submitted that as the prosecution has proved the possession of the Indian made Foreign Liquor by the accused and its seizure from his physical possession, it is positively proved that he had committed the offence punishable under Section 55 of the Abkari Act and the prosecution is entitled to get the benefit of Section 64 of the Abkari Act and in the absence of any plausible and convincing explanation for the possession of the contraband article, it is to be presumed that the appellant has committed the offence punishable under Section 55 of the Abkari Act. 6. I have carefully considered the above rival contentions CRL.A.NO.1514 of 2011 :-5-: of the counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment of the trial court and the evidence on record. 7. In the light of the rival pleadings and the findings of the court below, based upon the materials and evidence, the only question to be considered is whether the trial court is justified and correct in its finding that the accused has committed the offence punishable under Section 55 of the Abkari Act. According to me, in order to consider the above question, certain facts and evidence on record are essential to be referred which I shall refer now. 8. In order to establish the case of the prosecution against the accused, the prosecution very much relied upon the evidence of PW1, who is the detecting officer. When PW1 was examined, he had deposed that on 20.5.2006, while he was conducting the patrol duty along with party, at about 4.45 p.m., he had received information that sale of liquor was going on behind the shop room of one Kunhamu at Bheemanadi. CRL.A.NO.1514 of 2011 :-6-: According to him, when he reached the place along with police party at 4.55 p.m., the accused was found sitting with a plastic bag at his lap on the eastern side of a borewell. On seeing the party, according to PW1, the accused made an attempt to move from the place. But, he was intercepted and inspected the bag in the presence of independent witnesses and it was found that the plastic bag contains 16, 375 ml.bottles VSOP brandy. According to him, he had arrested the accused then and there and took two bottles as sample. The accused was also arrested. Ext.P1 is the arrest memo and Ext.P2 is the seizure mahazar. According to PW1, thereafter, he reached the Police Station wherein he had registered Ext.P3 F.I.R. He also prepared Ext.P4 property list and Ext.P5 forwarding note for sending the samples for chemical analysis. According to him, he had also forwarded the balance property to the Assistant Excise Commissioner and accordingly, Ext.P6 inventory was prepared by the Assistant Excise Commissioner. PW1 has also conducted the investigation and he prepared CRL.A.NO.1514 of 2011 :-7-: Ext.P7 scene mahazar and recorded the statements of witnesses also. It is pertinent to note that when PW1 was cross-examined, he had stated that the liquor involved in this case is not prohibited for sale in Kerala. It is also relevant to note that the prosecution has no allegation that the contraband articles seized from the possession of the accused are manufactured out of State or imported from outer states. It is also relevant to note that except the information allegedly received by PW1, there is no material or evidence to show that the accused has engaged in the sale of IMFL which he kept in his possession. It is true, even though the learned Judge of the trial court has observed that the offence under Section 55 (i) of the Abkari At is also revealed in this case, I find no basis for such observation. According to me, the above observation was made only on surmises and conjectures which we can see from paragraph 13 of the judgment. In para 13, the learned Judge of the trial court has observed that the fact that the accused has been keeping 16, 375 ml. Bottles on the backside CRL.A.NO.1514 of 2011 :-8-: of a shopping complex clearly indicates that the intention of the accused was to conduct sale of liquor and so the offence described under Sections 55(a) and (i) of the Abkari Act is attracted in this case. There is no evidence adduced by the prosecution in support of the allegation that the accused has kept the IMFL for sales. No sale proceeds is recovered connected with the sale of the IMFL either by way of bottlewise sale or retail. Therefore, according to me, the offence under Section 55(i) of the Abkari Act is not at all attracted. This Court in the decision reported in Thomas v. State of Kerala [2005(4) KLT 58 (C.No.77)] has held that the possession even if illicit liquor in respect of which tax etc. has been paid, may also amount to an offence punishable under S.55(i), if illicit sale or storage for sale takes place. As I indicated earlier, in the present case, absolutely there is no evidence to show that the possession of the contraband article by the accused was for the purpose of illicit sale or storage for sale. So, Section 55(i) of the Abkari Act is not attracted. CRL.A.NO.1514 of 2011 :-9-: 9. In the very same decision in Thomas case (cited supra), this Court has held that the possession of IMFL, which is not a prohibited liquor, simpliciter is not an offence punishable under Section 55(a) of the Act. Another Judge of this Court in the decision reported in Raman v. State of Kerala [2007(4) KLT 223] has held that the case should fall within the ambit of Section 55(a) of the Abkari Act, only when a person was found to be in possession of liquor in the course of import, export, transport or transit of the goods and it is further held that under Section 55(a) of the Abkari Act, the prosecution must allege and prove that possession of the contraband liquor was incidental or in connection with export, import, transport or transit of liquor. In that decision, this Court has also held that the possession of foreign liquor in excess of prescribed quantity, amounts to violation of provisions of Foreign Liquor Rules, attract punishment under Section 63 only. In the present case, no doubt, the prosecution has succeeded in proving that the accused was CRL.A.NO.1514 of 2011 :-10-: found in possession of 16, 375 ml. bottles of IMFL. But, the prosecution has no allegation that the accused was found in possession of the same as incidental or in connection with export,import, transport or transit of liquor. More over, in this case, when PW1 was examined, he had categorically deposed during the cross-examination that the liquor involved in this case is not prohibitted for sale in Kerala. If that be so, according to me, in the light of the decision cited supra, Section 55(a) of the Abkari Act is not attracted against the appellant. Recently, this Court in the decision, reported in Nobbey v. State of Kerala [2011(1) KLT SN 51 (C.No.68)], has held that when liquor in excess of permitted quantity was purchased from the Beverages Corporation for own consumption, the offence alleged can only be under Section 63. It is true that the material objects recovered from the possession of the accused do not bear the label of the Kerala State Beverages Corporation. At the very same time, the prosecution has also no case that it was not manufactured in CRL.A.NO.1514 of 2011 :-11-: the State of Kerala or manufactured outside the State of Kerala. Coupled with the above fact, when examining the deposition of PW1 that IMFL seized from the possession of the accused and the sale of the same is not prohibitted in the State would show that the only offence attracted is under Section 63 of the Kerala Abkari Act. Therefore, according to me, in the light of the decisions of this Court reported in Thomas v. State of Kerala [2005(4) KLT 58 (C.No.77)], Raman v. State of Kerala [2007(4) KLT 223] and Nobbey v. State of Kerala [2011(1) KLT SN 51(C.No.68)] and in the light of the admission of PW1 that the liquor involved in this case is not prohibitted for sale in Kerala, I am of the view that the only offence attracted against the appellant is under Section 63 of the Abkari Act. 10. In the light of the above facts and circumstances and discussion and the findings, according to me, the finding of the learned Judge of the trial court that the appellant/accused has committed the offence punishable under Section 55(a) of the Kerala CRL.A.NO.1514 of 2011 :-12-: Abkari Act is unsustainable. Thus, the offence attracted against the appellant/accused is only under Section 63 of the Kerala Abkari Act and accordingly, he is convicted thereunder. In the light of the conviction of the appellant under Section 63 of the Kerala Abkari Act, he is sentenced to pay fine of Rs.5000/- (Rupees Five Thousand only) and in default, he is directed to undergo simple imprisonment for a period of six months. In the result, this appeal is disposed of setting aside the conviction and sentence of the appellant under Section 55(a) of the Kerala Abkari Act and convicting the appellant under Section 63 of the Kerala Abkari Act and imposing a sentence of fine of Rs.5000/-, in default, he is directed to undergo simple imprisonment for six months. The Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. V.K.MOHANAN, MBS/ Judge CRL.A.NO.1514 of 2011 :-13-: In the light of the above facts and circumstances and the discussion, I am of the view that the prosecution has proved its case beyond reasonable doubt and they succeeded in establishing that the appellant was found in possession of 5 litres of illicit arrack at 7.45 p.m. on 19.9.2005 at the place of occurrence. Therefore, the finding of the CRL.A.NO.1514 of 2011 :-14-: learned Judge of the trial court is in accordance with the evidence on record and no interference is warranted. Accordingly, the conviction recorded against the appellant is confirmed. Regarding the sentence, the learned counsel submitted that a lenient view may be taken since the appellant is the first offender. From the records, it appears that at the time of incident, the appellant was only at the age of 24 years. The prosecution has no case that the appellant/accused is involved in any other similar offences previously. However, the quantity involved in this case is 5 litres of illicit arrack. Having regard to the facts and circumstances involved in the case, especially in the light of the mitigating circumstances pointed out earlier, I am of the view that the sentence imposed against the appellant requires reconsideration. Accordingly, in modification of the sentence awarded by the trial court, the appellant is sentenced to undergo rigorous imprisonment for a period of two years under Section 58 of the Kerala Abkari Act and also sentenced to pay fine of CRL.A.NO.1514 of 2011 :-15-: Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for one month. The appellant is entitled to get set off under Section 428 of the Cr.P.C. for the period which he had undergone imprisonment as a pre-trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under Section 58 of the Kerala Abkari Act, but subject to the modification with respect to the sentence as indicated above. In the light of the above modification with respect to the sentence, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1514 of 2011 :-16-: CRL.A.NO.1514 of 2011 :-17-: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 955 of 2010 ---------------------------------------- Dated this the 31st day of October, 2011 GIST OF JUDGMENT In the light of the above discussion and materials and evidence referred to above, I find no reason to interfere with the findings of the court below and according to me, the prosecution has succeeded in proving the case against the appellant/accused beyond all reasonable doubts and accordingly, I confirm the finding and conviction recorded by the trial court against the appellant. Learned counsel for the appellant submitted that the sentence imposed against the appellant is disproportionate to the allegation raised against him and also submitted that the appellant is the only bread winner of the family consisting of his wife and children and therefore, a lenient view may be taken in the matter of sentence. I CRL.A.NO.1514 of 2011 :-18-: have considered the above submission of the learned counsel for the appellant. It appears that at the time of the incident, the accused was only at the age of 42 years and he was a coolie. The contraband article which was found in possession of the petitioner would come only 6 litres, though the same is a Karnataka made arrack. In the light of the above mitigating circumstances, according to me, the sentence awarded against the appellant requires reconsideration and liable to be modified. Having regard to the facts and circumstances involved in the case and in the light of the facts indicated above, two years rigorous imprisonment is sufficient to meet the ends of justice. While confirming the sentence of fine, the default sentence can be reduced to three months simple imprisonment. Accordingly, while confirming the conviction of the appellant for the offence under Sections 8(1) and (2) of the Kerala Abkari Act, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh, in default, he CRL.A.NO.1514 of 2011 :-19-: is sentenced to undergo simple imprisonment for three months. The appellant is entitled to get set off under Section 428 of the Cr.P.C. for the period which he had undergone imprisonment as a pre-trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under Sections 8(1) and (2) of the Kerala Abkari Act, but subject to the modification with respect to the sentence as indicated above. In the light of the above modification with respect to the sentence, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1514 of 2011 :-20-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 CRL.A.NO.1514 of 2011 :-21-: JUDGMENT Dated:4.10.2011