IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 CRL.A.No. 657 of 2003() ----------------------- SC.81/2000 of ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.I, MANJERI DATED 19.4.2003. .................... APPELLANT(S): ACCUSED ---------------------------- SASIDHARAN, S/O.KAVUMPANAVAYALIL PUTHANVEETTIL KOCHUCHERUKKAN, VADAKKEVILA VILLAGE, KOLLAM TALUK NOW RESIDING AT KADAR HAJI'S QUARTERS IN THAVANUR AMSOM ATHALOOR DESOM, PONNANI TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT: COMPLAINANT -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.A.No. 657 OF 2003 =========================== Dated this the 27th day of July,2010 ORDER Petitioner was convicted and sentenced for the offence under section 55(a) of Abkari Act by Additional Sessions Court, Manjeri in S.C.81/2000. Appeal is filed challenging the conviction and sentence. 2. Prosecution case is that on 17.12.1977 at about 4.45 p.m PW4 the then Ponnani Range Circle Inspector along with Excise Party including PW1 the Preventive officer, while on patrol duty, after parking the vehicle near Mathur Siva temple proceeded along the pathway. Appellant was found carrying M03 plastic bag containing M01 series of three bottles each containing 750 ml. illicit coloured arrack. Finding that appellant is perplexed by seeing the excise Party, they Crl.A.657/2010 2 stopped the appellant and examined the bag and found that it contained three bottles of coloured liquid and M02 glass. The coloured liquid was examined and by its taste and smell, it was found that it was coloured illicit arrack. On examining M02 glass it was found that it was used for taking illicit arrack. Getting satisfied that arrack is being kept for sale, in the presence of the witnesses, Ext.P1 mahazar was prepared and M01 to 2 were seized and from one of the bottles sample was taken in a 350 ml. bottle. The sample as well as the other three bottles were sealed. Appellant was arrested. On returning to the excise office, Ext.P5 Crime and occurrence report was prepared and crime was registered. PW5, the Preventive Excise Inspector registered the case under Ext.P6 and produced M0s and the seizure mahazar and the property list along with Ext.P7 forwarding note to sent the sample to the Chemical Laboratory for examination. Ext.P9 report was obtained from the Laboratory certifying that the coloured liquid contained 33.10% by volume of ethyl alcohol. The Crl.A.657/2010 3 final report was submitted thereafter. It was taken cognizance by the Chief Judicial Magistrate and committed to the Sessions Court which was made over to Additional Sessions Court for trial. 3. Learned Additional Sessions Judge framed the charge for the offences under section 55(a) of Kerala Abkari Act. Appellant pleaded not guilty. Prosecution examined six witnesses and marked exhibits P1 to P9and identified M0s 1 to 3. When appellant was called upon to enter on his defence and adduce evidence, after closure of the prosecution evidence and questioning the appellant under section 313 of Code of Criminal Procedure, he examined DW1. Learned Sessions Judge on the evidence found the appellant guilty. He was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000/- and in default simple imprisonment for one year. 4. Appellant contended that the learned Sessions Judge did not properly appreciate the evidence. It was argued that the contents of the bottles was not illicit arrack but Indian made Crl.A.657/2010 4 foreign liquor purhcased from Beverages Corporation. It is contended that when sample of arrack is to be prepared to sent to the Laboratory, preservative was added and as there is no evidence that preservation is added, based on Ext.P9 report, appellant should not have been convicted. It is also argued that the excise Guard who prepared Ext.P1 mahazar and the Guard who sealed the bottles and the sample were not examined and Ext.P1 does not show that it was prepared as dictated by PW4 and in such circumstances based on the evidence of Pws. 1 and 4, prosecution case should not have been accepted especially when Pws 2 and 3 the independent witnesses to Ext.P1 mahazar turned hostile. Learned counsel argued that on the evidence the conviction is illegal. Learned counsel finally argued that in any case considering the quantity of the liquor seized, the sentence awarded is excessive and it may be modified. 5. Learned Public Prosecutor pointed out that evidence of PW1 corroborates the evidence of PW4 and their evidence is further corroborated by Crl.A.657/2010 5 Ext.P1 mahazar. It was pointed out that evidence of PW4 establishes that it was as dictated by PW4 the Excise Guard prepared the mahazar and also sealed the sample of M0s and there is no reason to disbelieve the evidence and the evidence establish that appellant was in possession of the illicit arrack for the purpose of sale and hence conviction is perfectly legal and correct. 6. Ext.P1 mahazar was prepared contemporaneous to the arrest and seizure of the contraband articles. True, evidence of PW1 and 4 show that Ext.P1 mahazar was prepared in the handwriting of an excise Guard and that Excise Guard was not examined. It is true that evidence establish that out of the three bottles sample in a 350 ml. bottle was taken from one bottle and it was sealed by the Excise Guard and that Excise Guard was also not examined. The question is whether for their non-examination, the prosecution case is to be disbelieved or to be viewed with suspicion. I have gone through the evidence of PW1, 4 as well as Ext.P1 mahazar. Though PW1 and 4 deposed that Crl.A.657/2010 6 Ext.P1 mahazar was prepared not in the handwriting of PW1 or PW4, but in the handwriting of an excise Guard, evidence of PW4 establish that it was dictated to the Excise Guard by PW4 who write it. Though PW1 and 4 were cross examined at length, nothing was brought out to disbelieve their evidence that they were on patrol duty and reached near Mathur Siva temple at about 5-45 p.m on 17.12.1997 and found the appellant possessing M01 plastic bag containing M01 series of three bottles and M02 glass. Though learned counsel argued that the evidence of Pws.1 and 4 that appellant was in possession of the glass should not have been believed, I find no reason to disbelieve the evidence of PW1 and 4 corroborated in Ext.P1 that appellant was in possession of M02 glass also. 7. Though the Excise Guard who prepared the samples was not examined, evidence of PW1 and 4 with Ext.P1 mahazar establish that out of the seized three bottles sample from one bottle was prepared and sealed and M01 series of bottles were also sealed. Ext.P1 mahazar as well as Ext.P5 Crl.A.657/2010 7 occurrence report and Ext.P8 property list all reached the court on 18.12.1997 before expiry of 24 hours from the time of the seizure of the contraband articles from the appellant. By Ext.P7 PW5 sought to forward the sample to the Laboratory. It was sent. Ext.P9 Analysis report was obtained. Though learned counsel appearing for the appellant vehemently argued that from the evidence of Pws. 1 and 4 it cannot be found that the contents of M01 series of bottles are not Indian made foreign liquor and the appellant has purchased them and PW1 did not deny the fact that the bottles were sealed at the time of seizure , PW1 only deposed that he did not verify that fact. But evidence of PW4 establishes that none of the bottles were sealed at that time when they were seized. The evidence of 1 and 4 establish that when M02 glass was examined it contained drops of illicit arrack and it was having that smell also. In such circumstances, it is clear that bottles were not sealed when they were seized. Evidence of PW1 and 4 also establish that the bottles contained not XXX Crl.A.657/2010 8 Rum or Indian made foreign liquor as canvassed by the appellant but only coloured illicit arrack. Ext.P9 report corroborates that finding. In such circumstances, on the evidence I have no hesitation to hold that appellant was in possession of M01 series of bottles and M02 glass and the bottles contained coloured illicit arrack. 8. Then the question is what is the offence attracted. Though appellant was convicted for the offence under section 55(a) of Abkari Act, as held by the Division Bench of this Court in Surendran v. Excise Inspector 2004(1) KLT 404 and in Mohanan v. State of Kerala (2007(1) KLT 845) unless possession was in the process of export or import, possession of 2.25 litres illicit arrack will not attract an offence under section 55(a) of Abkari Act. The question then is what is the offence attracted? The evidence establish that appellant was in possession of the coloured illicit arrack. In the glass seized drops of illicit arrack were found. It establishes that it was kept for sale. It is therefore absolutely clear that appellant has Crl.A.657/2010 9 been in possession of the coloured illicit arrack with the knowledge that it has been illicit arrack. In such circumstances the offence under section 58 of Abkari Act is definitely made out. Therefore the appellant can only be convicted for the offence under section 58 of Kerala Abkari Act. 9.Then the question is what is the sentence to be awarded?. The sentence for an offence under section 55(a) of Abkari Act and Section 58 of Abkari Act, after the amendment by Kerala Abkari Amendment Act 16 of 1997 which came into effect with effect from 3.6.1997, the sentence is the same for both the offences. The sentence includes a minimum fine as well as a maximum substantive sentence. The minimum fine is Rs.1,00,000/- and the maximum substantive sentence is imprisonment which may extend to ten years. Considering the quantity of the illicit liquor, interest of justice will be met if the substantive sentence is modified to simple imprisonment for one year in addition to the minimum fine of Rs.1,00,000/-. The appeal is allowed. The conviction of the Crl.A.657/2010 10 appellant for the offence under section 55(a) is set aside. Appellant is convicted for the offence under section 58 of Kerala Abkari Act and sentenced to simple imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for three months. Appellant is also entitled to set off as provided under section 428 of Code of Criminal Procedure. Additional Sessions Judge (Adhoc)I, Manjeri is directed to execute the sentence. Appellant is directed to appear before Addl.Sessions Judge on 2.9.2010. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- Crl.A.No.657 /03 --------------------- JUDGMENT 26th JULY,2010