IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 11TH DAY OF FEBRUARY 2011/22ND MAGHA 1932 CRL.A.No. 983 of 2003 ( ) ------------------------- AGAINST THE JUDGMENT IN SC.363/2001 of ADDITIONAL SESSIONS COURT (ADHOC), THODUPUZHA DATED 20-05-2003 APPELLANT(S): ------------------------ 1. VENU, S/O SAKARAN, OLEDATHU HOUSE, KANJIKUZHI. 2. RAJENDRAN, S/O GOPALAN, VANYAMPATHAL HOUSE, KANJIKUZHI BY ADVS.SRI.S.GOPAKUMARAN NAIR (SR.) SRI.SOORAJ T. ELENJICKAL RESPONDENT(S): -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.983 OF 2003 ----------------------------------- Dated 11th February, 2011 J U D G M E N T Appellants are accused nos.1 and 2, who along with 3rd accused were charge sheeted for offence under section 8(1) and 8 (2)and 55(a) of Abkari Act. After trial, 3rd accused was acquitted. First and second accused are found guilty of offence under section 8(1)(2) and 55(a) of Abkari Act and they were convicted under the said sections. But sentence was passed only under section 55(a) of Abkari Act to undergo rigorous imprisonment for a period of three months each and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for three months each for the said offence. The above conviction and sentence are challenged in this appeal. 2. According to prosecution, on 18.8.1999 at about 9.45 am, while PW7 was sitting inside the station, he got information that first accused was conducting sale of arrack in front of house of second accused. He accordingly proceeded to the place along with police party. When they reached the house, they found first accused running into the house of second accused carrying a Crl.A. No.983/03 2 plastic bottle and a glass. Police party went to the said house along with independent witnesses and first accused was asked to come out of the house. The second accused then, came out of the house and told them that there was nobody inside the house. Since PW7 was satisfied that first accused was inside the house, he prepared a search memo and sent the same to the court and conducted search of house by about 10.40 am. 3. During search, first accused was found sitting on the attic of the house and he was caused to come out with the help of witnesses. when he was questioned, he gave information to PW7 that arrack bottle and glass were dropped in between the gap of almarah in the center room when he got into the house. Pursuant to the said statement, the said place was examined and it was found that a plastic bottle and a glass and two white cans were kept in between the wall and almarah. The bottle contained 300 ml of arrack and two cans contained five liters and 2.5 liters of arrack respectively and samples were taken from the said article. 4. Second accused was questioned by PW7 while he said arrack belonged to first accused and that was kept in the house. Balance of arrack was kept buried in the sand heaped in the northern courtyard of the house by first and second accused. The Crl.A. No.983/03 3 heap of sand was examined in the presence in the presence of witnesses and three cans were found to be hidden inside the heap. On examination of the can it was found to contain 13 liters of arrack in each of the cans. 5. First and second accused were arrested from the spot. Articles were seized, samples were taken and mahazar was prepared. In course of this process, persons from the gathering told PW7 that one person was running out of the house and he is the third accused, who was arrested later. He is also alleged to have kept those articles in the place of occurrence. 6. To prove prosecution case, prosecution examined PW1 to 11 and marked Ext.P1 to P4 and MO1 series and MO2 series. On analysis of the evidence, court found that prosecution has proved beyond reasonable doubt offence under section 8(1)(2) and 55(a) of Abkari Act against first and second accused. It was also found that there is no legal evidence to prove that accused no.3 committed any offence. Third accused could not be apprehended and there is no satisfactory evidence to identify 3rd accused who allegedly ran away from the spot. 7. However, trial court convicted first and second accused on the basis of evidence of PW7. According to trial court, Crl.A. No.983/03 4 prosecution could not adduce satisfactory evidence to prove documents that house is owned and possessed by second accused. The conduct of the accused clearly shows that he is the owner of the house. The relevant observations are in paragraph 8 of the judgment, which are extracted hereunder: “ Of course prosecution could not adduce any satisfactory evidence to prove by document that the house is owned or possessed by accused no.2. But his conduct clearly shows that he is the owner of the house. When accused no.1 entered into his house with MO1 series bottle and glass and when PW7 asked accused no.1 to come out accused no.2 came out and told that nobody was inside the house. He was further found in the house. In consequences of information received from him PW7 seized MO2 series huge quantity of arrack from the place of concealment namely beneath a heap of soil. All these things clearly points out to the only conclusion that accused no.2 is the owner of the house searched by PW7. 8. Heard both sides. Perused the records. On going through the impugned judgment, I find that trial court has only narrated testimony given by witnesses in the judgment but there is no attempt to find out what exactly was the overtact committed by the accused which constitutes the offence. Trial court does not appear to pay attention to find out what exactly was the overtact committed by accused which made him liable for offence alleged Crl.A. No.983/03 5 against them. A charge is framed against appellant and it is seen from the records that the said charge is a mere copy of the charge submitted by police. But, the said charge does not reveal the specific overtacts which each of the accused committed which will disclose any ingredients of any of the offences alleged. 9. Before a charge is framed, it is the duty of the court to find out from the records whether accused can be presumed to be guilty of a particular offence. To come to such a conclusion, court must ascertain from the materials available before the court what exactly are the overtacts committed by accused, which could constitute the particular alleged offence. But no attempt is seen to have been made in this case to find out what exactly did make them liable for offence under section 8(1)(2) and 55(a) of Abkari Act. 10. A reading of section 8(1) of Abkari Act lays down that no person shall possesses arrack etc. and section 8(2) of the Act shows that any contravention of section 8(1) is punishable under the said section. Therefore, possession of arrack, whatever be the quantity involved, is offene under section 8(1) of Abkari Act. However, section 55(a) lays down that whoever in contravention of this Act or of any rule or order, possess etc. will be liable for Crl.A. No.983/03 6 offence under section 55(a) of Abkari Act. Even though it is laid down that if a person in contravention of any of the provisions of the Act possess liquor, will be liable under the said section. 11. Possession of liquor is referred to in section 13 of the Act. A reading of section 13 shows that no person, not being a licensed manufacturer or vendor of liquor or intoxicating drug shall have in his possession any quantity of liquor or intoxicating drug in excess of such quantities as the Government may from time to time, prescribed by notification etc., in respect of any specified description or kind of liquor or intoxicating drug, unless under a licence granted by the Commissioner in that behalf. A reading of section 13 shows that possession of liquor is prohibited under the said section. 12. But, very same provision indicates that only excess quantity than which is prescribed by notification is punishable under section 13 of the Act. It is not possession of liquor which is prohibited under section 13. Only possession of any quantity of liquor in excess of quantity prescribed by notification is prohibited under section 13 of the Act. Liquor is defined under section 3(10) of the Act. As per the said section, “liquor” includes spirits of wine. Liquor and arrack are defined in section 3 of Abkari Act. Crl.A. No.983/03 7 History of legislation will indicate that “possession” of arrack was once permitted and only the quantity was limited. Later, there was a total ban of possession of arrack by introducing section 8(1) of Abkari Act. For sometime, no penal provision was introduced in the Act for making possession of arrack offence. 13. When arrack is possessed in violation of section 8(1) of the Act, Section 55(a) was being used for proceeding against the accused, as possession of arrack was prohibited under section 8 (1) of the Act. Since there is no specific provision which makes the contravention of section 8(1) of the Act punishable, the accused used to be charge sheeted for offence under section 55 (a) of Abkari Act. After introduction of section 8(2), possession of arrack in contravention of section 8(1) of the Act is an offence under section 8(2) of the Act. In such circumstances, it was necessary for the court to go through the relevant provisions and see what exactly could be the offence which is allegedly committed by accused no.1 to 3. 14. It is also clear that trial court has not gone through records before framing charge to find out what exactly each of the accused did, and whether the overtacts committed by each of the accused constitute any offence alleged against them. It Crl.A. No.983/03 8 appears that relevancy of possession of house is discussed by trial court, as if possession of house is important in this case. What prosecution alleges is that first accused was found in physical possession of a bottle of arrack as well as glass. As per the allegations in the mahazar, a glass, bottle and also cans which were seized from behind the almarah kept in the house which belonged to first accused. 15. The balance arrack was kept hidden in a heap of sand in the property lying northern side of the house. Three cans containing 13 liters of arrack each were seized from inside the sand heap and those are allegedly kept there by first and second accused. Whether the second accused had any connection with the arrack or whether the arrack seized from the heap belonged to the first accused also is to be looked into on the basis of records placed before the court to find out what exactly the offence committed by first and second accused. 12. This is not a case where second accused was implicated in the case for the mere reason that articles were seized from his house. The records have to be looked into in depth to find out what exactly is the offence committed by first and second accused before framing charge. The court must distinguish the Crl.A. No.983/03 9 overtact committed by each of the accused and apply its mind before framing charge against appellants 1 and 2. On going through the charge framed by court, I am satisfied that it does not make any sense at all. I am satisfied that the manner in which charge is framed has resulted in miscarriage of justice to the appellants. This has incapacitated his court from taking a right decision in the matter, since the overtact committed by each accused is not revealed from the charge. 13. It is relevant to mention here that section 8(1) and 55(a) dealing with various overtacts-possession, import, export, transport, manufacture etc. Section 55(i) also refers to storing for sale and sale. Section 8(1) also refers to manufacture, sale, possession, store etc. So what exactly was the overtact committed by each of the accused is to be found out from the records and the accused must be called upon to answer such overtact. This is not done. Therefore, the conviction made on the basis of a charge which does not disclose the requirements of the offence cannot be sustained. The case is to go back for retrial. The charge framed in this case cannot be sustained and it is to be quashed. Hence, the following order is passed: (1) The conviction and sentence passed against Crl.A. No.983/03 10 appellants are set aside. (2) The charge framed by court is hereby quashed. (3) Case is remanded to the trial court for fresh consideration and disposal in accordance with law. (4) The party shall appear before the trial court on issuance of notice to the counsel o both sides. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //