IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 335 of 2003() ----------------------- SC.260/1999 of ADDL.DISTRICT AND SESSIONS COURT FAST TRACK (ADHOC-I), KOZHIKODE .................... APPELLANT(S): ACCUSED: ---------------------- GANGADHARAN, S/O. KRISHNAN NAIR, OTTADICHALIL, MODAKKALLUR AMSOM, ADUVAD DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT: -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SRI. C.M.KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A. No. 335 of 2003 A =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the accused is to the judgment of the Addl. District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode dated January 27, 2003 in S.C. No. 260 of 1999, convicting him under section 55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of six months. 2. The case of the prosecution, as shaped in evidence before the trial court, in brief is this:- On July 2, 1998 at about 5.30 p.m. while PW1, the then Sub Inspector of Police, Atholi along with PW.2 a Constable attached to that Police Station were on patrol duty at Ulliyeri Bus Stand, the accused was found holding a plastic cover and on search it was found to contain 7 bottles, each having a quantity of 375 ml. of Indian Made Crl.A. 335/2003 2 Foreign Liquor. The articles were seized in the presence of two independent witnesses, PWs.3 and 4. The accused was arrested and produced before the committal court. The case was investigated by PW6, the then Head Constable of that station. After completing the investigation, the charge was laid before the committal court by PW1 alleging offences punishable under Sec. 55(a) and 55(g) of the Abkari Act. 3.When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence punishable under section 55(a) and 58 of the Abkari Act are exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court for trial and disposal. 4. The accused, on appearance before the trial court, pleaded not guilty to the charge under sections 55(a) and 58 of the Abkari Act. On the side of the prosecution PWs.1 to 6 were examined and Exts.P1 to P8 and MOI series and MOII were marked. When he was questioned under section Crl.A. 335/2003 3 313 Cr.P.C. by the trial court, he denied the incriminating circumstances. No evidence was adduced on the side of the defence. The learned Magistrate, on an appreciation of the evidence, found the accused guilty under section 55(a) of the Abkari Act, convicted him there under and sentenced him as aforesaid. He was acquitted of the charge under section 58 of the Police Act. The accused has now come up in appeal challenging his conviction and sentence. 5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 6. The following points arise for consideration :- 1) Whether the conviction of the appellant/accused by the trial court under section 55(a) of the Abkari Act can be sustained? 2) Whether the sentence imposed by the trial court is excessive or unduly harsh? 7. The case of the prosecution was that on July, 2, 1998 at about 5.30 p.m. the accused was found to be in possession of 7 bottles of Indian Made Foreign Liquor, each containing 375 ml. near the Bus Stand at Ulliyeri and that Crl.A. 335/2003 4 thereby committed the offence punishable under section 55 (a) of the Abkari Act. PWs.1 to 6 were examined on the side of the prosecution before the lower court. PW1 is the then S.I. of Police, Atholi Police Station who detected the offence. PW2 is the Constable who accompanied him. They gave a consistent version regarding the recovery of MOI series, the bottles containing I.M.F.L. and MOII the bag. Nothing was brought out in their cross-examination to show that they have any enmity towards the accused. The counsel for the appellant/accused argued that as the two independent witnesses to the seizure mahazar turned hostile and did not support the prosecution and PWs.1 and 2 being the official witnesses, their evidence should not be believed. I am not inclined to agree. It is settled law that evidence of official witness can be believed without any corroboration, if the same found to be reliable and trustworthy. The trial court found their evidence reliable and chosen to believe them. I have gone through their evidence. I find no reason to come to a different conclusion. Crl.A. 335/2003 5 Therefore, accepting their evidence I hold that the prosecution has succeeded in proving the recovery of MOI series and MOII from the accused. 8. The learned counsel for appellant/accused relying on a decision of this Court reported in Ali V. State of Kerala (2001(2) KLT 389) argued that though PW1 testified that he prepared and sent arrest memo before arresting the accused, no such arrest memo is seen in the records and also there is delay in forwarding the seized articles to court, which casts serious doubt regarding the version of PWs.1 and 2 about the arrest of the accused and alleged seizure of MOI series and MOII from the accused. I am unable to agree. Mere absence of arrest memo and delay in forwarding the seized articles to court is not a ground to discard the entire case of the prosecution. I have chosen to believe the evidence of PWs.1 and 2 regarding the arrest of the accused and seizure of MOI series and MOII from the accused. Further all the bottles seized were sealed from the spot and PWs.1, 2 and 3 have signed on the label. Those Crl.A. 335/2003 6 seals were found intact. In Ext.P5 Chemical Analyst has reported that the seals were intact and tallied with sample seals. There is nothing to show that the samples were tampered with. Further the report of the Chemical Analyst shows that MOI series contains I.M.F.L. Therefore, accepting the evidence of PWs.1 and 2, I hold that the accused was found in possession of MOI series bottles containing I.M.F.L. of 1.425 litres, as alleged by the prosecution. 9. Next question for consideration is whether a charge under section 55(a) will lie against the accused. The counsel for the appellant argued that during 1998 permissible quantity of I.M.F.L. a person can possess was 4.5 litres. as provided under the Order of the Government S.R.O.No.225/98 dated March 5, 1998 and that in this case the accused was found in possession of only 7 bottles of 375 ml. each totalling to 1.425 litres of Indian Made Foreign Liquor and therefore no charge under section 55(a) of the Abkari Act will lie against the accused. The learned Public Crl.A. 335/2003 7 Prosecutor would say that the seized bottles do not bear the security labels of Beverages Corporation as required under section 26 of the Abkari Act and that therefore charge under section 55(a) of the Abkari Act will lie against the accused. 10. There is force in the contention of the appellant that as the accused was found in possession of I.M.F.L. below the permissible quantity, no charge under section 55 (a) of the Abkari Act will lie against the accused. It is seen seen from S.R.O. No.225/98 dated March 5, 1998 that a person can possess for his own use I.M.F.L . up to 4.5 litres. The prosecution has failed to show that the accused has kept those contraband articles for sale. Therefore, I am of the view that a charge under section 55(a) will not lie against accused. That being so, the conviction of the accused by the trial court under section 55(a) of the Abkari Act cannot be sustained. 11. There is another aspect in this case. The seized bottles, MOI series, do not contain the security label of the Crl.A. 335/2003 8 Beverages Corporation. Therefore, the accused is guilty of violation of Rule 26 of the Foreign Liquor Rules, which is punishable under section 63 of the Abkari Act. Therefore, while acquitting the accused of the charge under section 55 (a) of the Abkari Act, I convict the accused for violation of rule 26 of the Foreign Liquor Rules, which is punishable under section 63 of the Abkari Act. 12. Thus, the appellant/accused is acquitted of the charge under section 55(a) of the Abkari Act, instead he is convicted under section 63 of the Abkari Act for violation of rule 26 of the Foreign Liquor Rules. He is sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months under section 63 of the Abkari Act. One month's time is granted for payment of the fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE. mn Crl.A. 335/2003 9 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-= Crl.A. No. 335 of 2003 A =-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 26 th day of March, 2010