IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 CRL.A.No. 1729 of 2003(D) ------------------------------------- [SC.NO.107/2001 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE] .................... APPELLANT/ACCUSED: ---------------------------------- K.P.BABA, S/O. KANNAKURUPPU, KUNHIPARAMBATH, NITTOOR POST, VIA. KAKKATTIL, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN. RESPONDENT/STATE/COMPLAINANT: ------------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. C.S. HRITHIK. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.1729 OF 2003 ----------------------------------------------------- Dated this the 31st day of March, 2010 JUDGMENT Aggrieved by the conviction and sentence imposed against the sole accused under Sections 55(a) and 58 of Abkari Act, he preferred this appeal, challenging the judgment dated 15.09.2003 in S.C.No.107/2001 on the file of Court of Additional District and Sessions Judge Fast Track (ADEHOC-1) Kozhikode. 2. The prosecution case is that on 28.05.2000 at about 6.p.m, PW1, the Sub Inspector of Police, Kuttiadi Police Station, during his patrolling duty, found the accused in possession of two plastic cans containing 8 litres of illicit arrack, from a lane, by the side of his house near Nettur Siva Temple. Accordingly, the accused was intercepted and arrested and the contraband article were seized and thereafter the accused as well as the contraband articles were removed to the police station and Crime No.111/2000 Crl.Appeal No.1729 OF 2003 2 was registered in the Kuttiadi Police Station. After completing the investigation in the above crime, a report was filed before the Judicial First Class Magistrate Court, Nadhapuram under Section 55(a) of the Abkari Act and the said court committed the case to the Sessions Court, where SC.No.107/2001 was instituted and it was made over to the Court of Assistant Sessions Judge , Vadakara and from where the case was transfered to the trial court for disposal. Though the police report was only for an offence under Section 55(a) of the Abkari Act, according to the trial court, Section 58 of the Abkari Act also revealed through the materials produced and therefore a charge under Section 55(a) and 58 of the Abkari Act framed against the accused, on his appearance and after hearing the prosecution as well as the defence. The accused denied the charge when the same was read over and explained to him. Thereafter, the prosecution adduced its evidence consists of oral testimonies of PWs. 1 to 6 and the documentary evidence such as Exts. P1 to P10. When the accused questioned under Section 313 of Cr.P.C, he denied all the incriminating Crl.Appeal No.1729 OF 2003 3 circumstances and the evidence which came out through the prosecution evidence. He took the stand of total denial. From the side of the defence, the accused himself was examined as DW1 and marked Ext.D1 series of document. On the basis of the above materials and evidence, the trial court found that there is no sufficient evidence and materials to convict the accused under Section 55(a) of the Abkari Act, but found that he is guilty under Section 58 of the Abkari Act. Accordingly, the appellant/accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of rupees one lakh and on failure to pay the fine amount, he is directed to undergo simple imprisonment for a further period of 9 months. It is the above conviction and sentence challenged in this appeal. 3. I have heard Sri P.V.Kunhikrishnan, learned counsel appearing for the appellant as well as the learned Public Prosecutor. 4. The learned counsel for the appellant raised a preliminary point with respect to the framing of charge and the prejudice that caused to the accused due to the grave Crl.Appeal No.1729 OF 2003 4 mistake committed by the trial court, while framing the charge. On hearing, the above preliminary point it appears to me that the said point has a vital and legal importance in the light of the facts and circumstances involved in the case which persuaded me to consider the said question before going in to the other details and merits of the case. 5. The learned counsel submitted that in fact police had filed their report under Section 173(2) Crl.P.C, on completing the investigation in the said crime against the accused alleging offence only under Section 55(a) of the Abkari Act. Thus when the court framed a formal charge on 09.07.2003, the only accusation therein is that the accused committed offence punishable under Section 55(a) of the Abkari Act. The learned counsel submitted that thereafter no fresh charge or altered charge was read over and explained to the accused and accused was not given an opportunity of being heard about any charge other than what framed and read over and explained to him on 09.07.2003. In support of the above contention, the learned counsel invited my attention to the endorsement contained Crl.Appeal No.1729 OF 2003 5 in the charge framed on 09.07.2003, which reads thus:- "17.08.2003. hd. Charge amended "including" Sec.58 Abkari Act. Sd/-. dated 17.08.2003." The learned counsel further invited my attention to the court proceedings and he pointed out that there is no posting on 17.08.2002 as seen endorsed in the charge. Thus, according to the learned counsel, the charge under Section 58 was framed without hearing the accused or his counsel, and that procedure of the trial court is in gross violation of Section 216(2) and Section 464(2)of the Code of Criminal Procedure. It is also the argument of the learned counsel that the charge under Section 58 of the Abkari Act is not a minor offence when compared with Section 55 (a) of the Abkari Act, since in both the case, the punishments contemplated are one and same and hence Section 222 of Crl.P.C is not applicable. 6. On the other hand, the learned Public Prosecutor submitted that whatever may be the Section of offence incorporated in the charge, the said charge was framed on the basis of the basic allegations that the accused was found in possession of 8 liters of arrack in two separate Crl.Appeal No.1729 OF 2003 6 cans and supported by the materials on record and therefore no prejudice is caused to the accused. 7. I have carefully considered the arguments advanced by both the counsel for the appellants and as well as the learned Public Prosecutor and also carefully perused the records of the court below. 8. At the out set, it is to be noted that the police has registered the crime as Crime No.111/2000 in Kuttiadi Police Station against the accused for the offence punishable, under Section 55(a) of the Abkari Act and after completing the investigation, they filed a report under Section 172(2) Crl.P.C. for the offence under Section 55(a) Abkari Act. It is also borne out from the report, namely, the charge framed by the court on 09.07.2003 that the accusation against the accused/appellant is that he had committed the offence punishable under Section 55(a) of the Abkari Act. Section 55 (a) of the Abkari Act read as:- “For illegal import, etc.-Whoever in contravention of this Act or of any rule or order made under this Act. (a)imports, exports, (transports, transits or possesses) liquor or any intoxicating drug; or Crl.Appeal No.1729 OF 2003 7 (b) xxx (d) xxx (e) xxx (f) xxx (g) xxx (h) xxx (i) xxx shall be punished.” From the records, it appears that the said charge was read over and explained to the accused on 09.07.2003 and the learned Sessions Judge recorded the pleadings of the accused on 09.07.2003, whereby the accused denied the said charge. But as pointed out earlier, in the original charge dated 09.07.2003, an endorsement is seen to the effect that “Hd the charge amended and including Section 58 of the Abkari Act,” which was endorsed on 17.08.2003. But from the court proceedings, though I have repeatedly gone through the same I failed to notice any endorsement dated 17.08.2003 in the proceedings sheet. After the proceedings dated 09.07.2003, in the proceedings sheet of the case, the next endorsement is dated 18.8.2003 and no proceedings endorsed on 17.8.2003. Therefore, it appears to be that the Crl.Appeal No.1729 OF 2003 8 submission made by the learned counsel is correct. If that be so, I have to hold that the learned Sessions Judge has compelled the accused to face the trial without properly framed charge, which will amounts to violation of Section 216(2) of Crl.P.C. If that be so, the same will amount to miscarriage of justice as contemplated by Section 464(2) of Crl.P.C. 9. It is also relevant to note that Section 58:- “For possession of illicit liquor:- whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing (the duty, tax or rental payable under this Act) not to have been paid therefor, (shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.)” Reading of the said Section would show that the punishment contemplated by Section 58 of the Abkari Act is same as that of Section 55(a) of the Abkari Act as I mentioned earlier and if that be so, it cannot be said that the punishment contemplated by Section 58 of the Abkari Act is a minor offence, when compared with Section 55(a) of the same Act and therefore the conviction and sentence Crl.Appeal No.1729 OF 2003 9 imposed by the trial court cannot be justified with the aid of Section 222 of Cr.P.C. 10. The learned counsel invited my attention to the decision of this court as well as the Apex Court respectively reported in Rajappan V. State of Kerala, (1981 KLT 41) and Shamnsaheb M. Multtani V. State of Karnataka, (2001 2 SCC 577) and on application of the principles laid down in the above decisions, in the facts and circumstances involved in the present case would show that the proceedings adopted by the court below and the omission in framing a proper charge, has adversely affected the accused, which resulted in miscarriage of justice. Therefore, the matter requires re-consideration by the trial court and hence the conviction and sentence and the judgment of the trial court are not sustainable and the same is liable to be set aside. In the result, this Crl.Appeal is disposed of setting aside the conviction and sentence imposed against the appellant vide judgment dated 15.9.2003 of the Additional District and Sessions Judge Fast Track (ADHOC-I), Kozhikode in Crl.Appeal No.1729 OF 2003 10 S.C.No.107/2001 and remanding the matter to the trial court for fresh disposal, after framing a proper charge in accordance with law and in the light of the above discussion. The accused is allowed to continue on bail and he is directed to appear before the court below as and when required by the court below connected with the inquiring and trial of the case. Trial court is directed to dispose of the matter as early as possible. V.K.MOHANAN,JUDGE. mns