IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 Crl.Rev.Pet.No. 997 of 2003(A) ----------------------------- CRA.792/2001 of ADDL.SESSIONS COURT, PARAVUR SC.23/2000 of ADDL.ASSISTANT SESSIONS COURT, PARAVUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ BABU, S/O NARAYANAN, POOVANTHARA, KOTTUVALLIKKAD, MOOTHAKUNNAM, N. PARAVUR. BY ADV. SRI.K.A.MANZOOR ALI RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, (THE EXCISE INSPECTOR, N.PARAVUR RANGE) REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ALEX M THOMBRA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1/09/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.R.P.No.997 of 2003 ---------------------------------------------------- Dated this the 1st day of September, 2011 Order The accused was convicted by the Additional Assistant Sessions Judge, North Paravur for the offence punishable under Section 55(a) of the Abkari Act and was sentenced to undergo S.I. for one year and to pay Rs.1 lakh as fine. The appeal filed by the accused was dismissed by the learned Sessions Judge. This revision is directed against the said conviction and sentence. 2. The case of the prosecution is that on 25.6.1997 at about 12.15 PM when P.W.1 and other excise officials conducted search in the house of the accused, in one of the rooms there were 16 bottles, each bottle containing 180 ml. of brandy. The labels found on those bottles described the item as 'Postman Brandy'. The contraband articles were seized from that house in the presence of the accused for which a search list and scene mahazar were prepared. The accused was arrested then and there. The material objects and the accused were removed to the Excise Range Office, Paravur and thereafter the accused and the material objects were produced before the Excise Inspector, Crl.R.P.997/03 2 Paravur Range Office. Search list, scene mahazar, occurrence report etc. were prepared on 25.6.1997. All the 16 bottles were sent for chemical examination. All the bottles except one contained ethyl alcohol the strength of which was above 41% of ethyl alcohol by volume. One bottle contained ethyl alcohol having a percentage of 31.38 by volume. 2. P.W.1 to P.W.6 were examined and Exts.P1 to P8 were marked. The learned trial Judge found that the prosecution could prove that the accused was in possession of 16 bottles of 180 ml. each of liquor having the description mentioned earlier and so he was found guilty of the offence under Section 55(a) and was convicted thereunder. 3. The learned Sessions Judge concurred with the view taken by the trial court and confirmed the conviction and sentence passed against the revision petitioner/accused. 4. The learned counsel for the revision petitioner/accused would submit that there is no satisfactory evidence to show that the accused was in conscious possession of 16 bottles mentioned above. There is discrepancy in the evidence given by P.W.1 and P.W.6 with regard to the seizure of bottles. The learned counsel Crl.R.P.997/03 3 points out the contradictions as to the room from where those bottles were seized. But that is not be of much consequence since Ext.P4, the scene mahazar shows the room where from 16 bottles mentioned above were seized. Ext.P3, the search list would show that the accused had signed as the owner of the house and also in token of having seen the articles seized from that house. It was also endorsed on the reverse that he had received the copy of the search list. The fact that the independent witness did not support the prosecution cannot lead to the conclusion that the evidence given by P.Ws. 1 and 6 regarding the search conducted and the seizure of the articles effected as per the search list and scene mahazar is unacceptable. Both the courts below found that the aforesaid 16 bottles were seized from the house which was searched as per Ext.P3. The learned counsel points out that there is difference in the number of the house. That also may not come to the help of the accused since it was not seriously disputed that from that house 16 bottles of brandy were seized. The accused was arrested then and there for which the arrest memo and inspection memo were prepared. Therefore, those two documents and the endorsements made by the Crl.R.P.997/03 4 accused in the search list would prove to the hilt that those 16 bottles were seized from that house. The conduct of the accused as stated above would further prove that the accused was responsible for keeping those liquor bottles in that house. 5. It was argued with vehemence by the learned counsel for the revision petitioner/accused that admittedly including the wife of the accused there were altogether five adult members, out of whom three are the adult sons of the accused. It is argued by the learned counsel that it could have as well been kept in that building by anyone of the other inmates. But when he was arrested and search was effected, there was no such case for the accused. All these articles were seized in his presence for which he signed the documents mentioned above. In such circumstances, the finding entered by the courts below that the accused was in possession of the aforesaid articles is only to be confirmed. 6. The learned counsel for the revision petitioner/accused would submit that there was inordinate delay in producing the properties before the court. Though the accused, the search list, the scene mahazar and other papers were produced before the Crl.R.P.997/03 5 Magistrate on 25.6.1997, the property list would show that the properties were produced only on 3.7.1997. But the learned Public Prosecutor would submit that what is required under the provision is that the seizure of the property should be reported to the court immediately. That was done as can be seen from the search list, the occurrence report and the scene mahazar. It could be seen that even from the property list that it was actually signed by the Excise Inspector on 25.6.1997 and there is another initial purported to be made by the officer of the court indicating that the properties were produced on 25.6.1997 but it seems it was returned and produced again on 3.7.1997. But the learned counsel for the accused would submit that there is no material to show that the properties produced were on 25.6.1997 and were returned and again re-produced on 3.7.1997. Anyway, it cannot be said that there was unreasonable delay in production of the property. That apart, 16 bottles were sealed and labelled then and there as can be seen from the evidence given by P.Ws.1 and 6. The Chemical Examiner found no tampering. Therefore, the argument in that line also cannot be accepted. 7. It is argued by the learned counsel that even if it is Crl.R.P.997/03 6 accepted that 16 bottles, each containing 180 ml. were seized from that house, it cannot be said that the accused can be held guilty of the offence under Section 55(a) of the Act. It is submitted by the learned counsel even if it is wife of the accused is excluded including the accused and his sons, it was possible for them to possess much more quantity of Indian Made Foreign Liquor(IMFL). According to the learned counsel, there is nothing to indicate that all the 16 bottles were not IMFL bottles. Even according to the prosecution, the labels found on those bottles described the liquor as 'Postman Brandy'. Ext.P8 would also justify that conclusion since all the 15 bottles did contain ethyl alcohol, the percentage of which was above 41%. There was only one bottle where the percentage was 31.38.. But the learned counsel submits that one of the bottles must have certainly been opened by excise officials at the time of detection to see the nature of the liquor contained in it. Therefore, according to the learned counsel, the strength of the ethyl alcohol must have got reduced because the ethyl alcohol content must have got evaporated and also because the lid must have got loosened by the time it reached the chemical examiner. Since all the other Crl.R.P.997/03 7 bottles showed the volume of ethyl alcohol percentage above 41%, it can be found that the aforesaid one bottle also did contain similar liquor. The total quantity covered by 16 bottles would be 2.880 litres, which according to the accused was within the permissible limits one person is permitted to hold at the relevant time. As there were other adult male members, the liquor possessed was within the permissible limits. There was no case for the prosecution that these 16 bottles which in all probability must have been IMFL bottles were kept for sale nor was there any evidence to suggest that any sale did take place immediately prior to the detection. Therefore, the learned counsel for the accused is justified in his submission that the evidence would lead to one conclusion that all the 16 bottles were IMFL and the total quantity was within the permissible limits and as such the possession thereof would not attract the offence under Section 55(a) of the Act. It cannot attract the offence under Section 55(1) of the Act since there is no evidence to show that it was kept for sale. As such the conviction of the revision petitioner is liable to be set aside. 8. In the result, this revision petition is allowed. The Crl.R.P.997/03 8 conviction and sentence passed against the revision petitioner are set aside. He is acquitted of the offence with which he stood charged and he is set at liberty. The bail bond executed by him will stand cancelled. N.K.BALAKRISHNAN, JUDGE. srd Crl.R.P.997/03 9