IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 CRL.A.No. 2499 of 2007() -------------------------------- SC.194/2007 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM .................... APPELLANT(S): IIND ACCUSED --------------------- P.M.MOHANAN,S/O. MADHAVAN, PARAMBUMKATTIL HOUSE, CHANGANASSERRY, NEDUMKUNNAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM (CRIME NO 15 OF 2006 OF CHANGANACHERRY EXCISE RANGE OFFICE) BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss [CR] V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.2499 of 2007 ----------------------------------------------------- Dated this the 24th day of March, 2010 JUDGMENT The challenge is against the conviction and sentence imposed vide judgment dated 21.11.1997 in S.C.No.194/1997 on the files of the Sessions Court, Kottayam. The appellant, who is arrayed as the second accused being the licensee of a toddy shop, faced trial along with the first accused, who allegedly the employee of the said toddy shop, for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act. But the appellant alone was convicted and punished under the above provision, whereas the first accused is acquitted. Hence, this appeal is at the instance of the second accused in the above Sessions Case. 2. Though this appeal pertains to the year 2007, this Court, by order dated 25.02.2010 in Crl.M.A.No.1894/2010 Crl.Appeal No.2499 of 2007 2 preferred by the appellant, directed the Registry of this Court to post the appeal for hearing, as the appellant is suffering from serious ailment namely, locally advanced Carcinoma Tongue Post Chemo and thus this appeal has come up for hearing out of turn. 3. The prosecution case is that on 19.10.2006 at about 6.50 p.m, in the toddy shop No.51/2006 of which the second accused is the licensee housed in the building bearing door No.V.P I/406 of Vellavoor Panchayath, the accused were found keeping 2 litres of arrack and 5 ½ litres of spirit for the purpose of sale and thereby committed the offences punishable under Sections 8(1), (2) and Section 55(a) and (i) of the Kerala Abkari Act. 4. According to the prosecution, in pursuance of the general direction issued from the Excise Department, PW3 conducted a raid in Toddy shop No.51/2006-2007 at Kulathoormuzhi on 19.10.2006 at about 6.15 p.m. and seized the illicit arrack and spirit mentioned above, which were kept beneath a desk in the kitchen room of the toddy Crl.Appeal No.2499 of 2007 3 shop and also found Rs.3,710/- in the drawer of the desk. According to the prosecution, samples were drawn from the contraband article detected and the remaining substance were seized. It is the further case of the prosecution that PW3 obtained the signatures of the witnesses and that of the first accused, who were present in the toddy shop at the time of search. Thus, the specific allegation of the prosecution is that the first accused was the then Manager, engaged in the sale of toddy in the said toddy shop of which the appellant is the licensee and he was found in possession of the contraband article. On the basis of the above allegations, Crime.No.15/2006 was registered in the Excise Range, Changanacherry for the offences punishable under Section 8(1) and (2) and Section 55(a) and (i) of the Kerala Abkari Act, and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court, Changanacherry, and the case was taken as C.P. No.16/2007 and by order dated 28.7.2007 therein, the learned Magistrate committed the case to the Sessions Court Crl.Appeal No.2499 of 2007 4 wherein S.C.No.194/2007 was instituted and subsequently the case was made over to the trial court for disposal. 5. On the appearance of the accused, after hearing the prosecution as well as the defence, the court framed a formal charge against both the accused, under Sections 8(1) and (2) of the Kerala Abkari Act and according to the court, the prosecution materials were not sufficient to frame charge against the accused under Sections 55(a) and (i) of the Abkari Act. Thus the charge so framed was read over and explained to the accused and they denied the same and pleaded not guilty, which resulted in the further trial of the case, during which the prosecution adduced its evidence consists of oral testimony of PWs. 1 to 11 and the documentary evidence such as Ext.P1 to P11. Ext.X1 is marked as court exhibit and MO1 to MO4 were identified and marked as material objects. From the side of the defence DWs. 1 and 2 were examined and Exts. D1 and D2 were produced. The incriminating circumstances and the evidence, which emerged during the prosecution evidence Crl.Appeal No.2499 of 2007 5 were put to the accused under Section 313 of Cr.P.C and they denied the same. 6. The first accused took a stand of total denial whereas the appellant-the second accused raised a plea to the effect that he was hospitalised due to cancer and at the relevant point of time, he was undergoing treatment as an inpatient and the first accused was not his employee appointed as the Manager of the toddy shop of which he is the licensee, from where the alleged seizure was effected. According to the appellant, one Bhuvanachandran was the Manager of the toddy shop and thus he pleaded for an acquittal. After considering the above pleadings and materials on record, the trial court came into the conclusion that first accused is not guilty, especially on the ground that the prosecution miserably failed to establish that he was the Manager of the toddy shop, at the relevant time, from where the contraband article was allegedly recovered. Though an order of acquittal was recorded in the above case in favour of the first accused, the trial court, especially Crl.Appeal No.2499 of 2007 6 embarking upon the provisions of Section 64 of the Abkari Act, found that the appellant-the second accused being the licensee of the shop, is guilty of the charge levelled against him. Thus the trial court sentenced the appellant to undergo simple imprisonment for 6 months and also imposed a fine of Rupees one lakh and in default of paying the fine amount directed him to undergo simple imprisonment for another three months. It is the above conviction and sentence imposed against the appellant challenged in this appeal. 7. Going by the materials and evidence of the prosecution and the allegation raised, it can be seen that in order to establish the case, the prosecution heavily relied upon the evidence of PW3, the Detecting Officer through whom Ext.P2 seizure mahazar was proved and tried to establish the detection of MO1 Can having the capacity of 35 litres from where 12 litres of toddy was allegedly found, MO2 Can having the capacity of 10 litres from where two litres of arrack was allegedly seized and MO3 can with the Crl.Appeal No.2499 of 2007 7 capacity of 10 litres in which 5 ½ litres of rectified spirit was allegedly detected. Beside the above seizure MO4 currency notes for a total sum of Rs.3,710/- was also claimed to have proved through PW3. PW1 is the Thondy Clerk through whom Ext.X1 register was proved. The independent witnesses examined by the prosecution namely PWs.4, 8, 9 and 10 turned hostile. It is pointed out by the trial court that those witnesses did not support the prosecution as they are workers of the accused. But in the evidence of those witnesses they have deposed that the first accused was not the Manager of the toddy shop at the relevant time. PW5 who is an Excise Inspector, was examined to prove Ext.P4 occurrence report. PW6 is a guard, who collected the samples from the court and produced the same in the laboratory for chemical analysis. PW7 is the Manager of the Excise Division Office, at Kottayam through whom, rental agreement was executed between second accused and owner of the building and Ext.P6 consent letter issued by the building owner, are marked. PW11 is Crl.Appeal No.2499 of 2007 8 the Circle Inspector of Excise, who conducted the remaining investigation and laid the report. 8. DW1 is the doctor who issued Ext.D1 discharge summary with respect to the ailment and treatment of the appellant/accused which would show that the appellant/second accused was admitted in the hospital on 11.9.2006 and discharged on 25.12.2006. DW2 is a toddy tapper attached to the said toddy shop and Ext.D2 is his identity card. According to DW2, at relevant time, the manager of the toddy shop of which the appellant is the licensee, was one Mr.Bhuvanachandran and not the first accused. 9. In the light of the above facts and circumstance involved, especially in view of the finding arrived on by the court below with respect to first accused and his order of acquittal, the question to be considered is whether the prosecution has established the charge against the appellant and whether the trial court is right in convicting the appellant and imposing the above sentence against the Crl.Appeal No.2499 of 2007 9 appellant/second accused for the above offences, with the aid of Section 64 of the Abkari Act, especially when the first accused is acquitted. 10. I have heard Sri. S.Rajeev, learned counsel appearing for the appellant and also the learned Public Prosecutor. I have also perused the materials and evidence on record. 11. The learned counsel for the appellant submitted that the appellant/second accused was hospitalised during the relevant point of time as evidenced by the deposition of DW1- the Doctor and Ext.D1 document and therefore it is for the prosecution to establish with cogent and satisfactory evidence that the appellant/second accused was actively involved in the commission of the offence as alleged by the prosecution. The learned counsel pointed out that as the trial court has already acquitted the first accused, in whose presence the alleged recovery was effected, the appellant cannot be convicted unless it is specifically proved that the contraband articles were kept inside the building, where the Crl.Appeal No.2499 of 2007 10 toddy shop was conducted by the appellant and the same was done by the appellant. It is also submitted by the learned counsel, that as the first accused was already acquitted on the basis of the discussion and finding arrived on by the court below, the appellant cannot be convicted. In support of the contention, the learned counsel, placed reliance upon the decision of this Court reported in Muraleedharan V. Sub Inspector of Police, (2007( 2) KLT 662). 12. On the other hand, the learned Public Prosecutor submitted that in view of Section 64 of the Abkari Act, especially the unimpeachable evidence of prosecution witnesses and the materials, regarding the seizure of the contraband article from the toddy shop of the appellant, it is for the appellant to establish that he had taken precaution and given instructions to his servants not to involve in such illegal activities etc. Thus, according to the learned Public Prosecutor, as the appellant has miserably failed to discharge his burden in this regard, the trial court is Crl.Appeal No.2499 of 2007 11 absolutely right in convicting him. Therefore, no interference is warranted . 13. I have carefully considered the contentions advanced by both the counsel for the appellant as well as the learned Public Prosecutor and also scrutinised the evidence and materials on record. 14. At the outset, it is to be noted that, the specific case of the prosecution is to the effect that during the search of the toddy shop of which the appellant is the licensee, certain contraband articles mentioned above were detected in the presence of first accused and therefore the first accused and being the employer of the first accused and the licensee of the toddy shop, the second accused/appellant, who, even though was not present at the time of alleged detection, are liable to be convicted under Section 8(1) and (2) of the Abkari Act. The first part of the prosecution case, especially against the first accused was repelled by the trial court itself. According to the trial court the prosecution has miserably failed to establish that the Crl.Appeal No.2499 of 2007 12 first accused was the Manager of the toddy shop at the relevant time. If that be so, the question to be considered is, after having recorded an order of acquittal in favour of the first accused on the ground that he is not the manager of the shop at the relevant time, along with whom the contraband article were seized, whether the trial court is legally justified in convicting the appellant/the second accused with the aid of Section 64 of the Abkari Act. 15. While considering the above question it is to be recollected that except the official witnesses of the prosecution, all other independent witnesses cited and examined by the prosecution turned hostile towards the prosecution and they have categorically stated that first accused was not the Manager of the toddy shop at the time of seizure of the contraband article. By examining DW2 and producing Ext.D1, the defence has established that during the relevant time of the seizure, the manager of toddy shop of which the appellant is the licensee is one Mr. Bhuvanachandran. The above version of defence though Crl.Appeal No.2499 of 2007 13 not directly approved by the trial court, it appears that the same has been recognised, by rejecting the plea of the prosecution that first accused was the Manager of the toddy shop in question. It is also pertinent to note that with respect to the search and seizure, the only witness cited by the prosecution is PW4, who turned hostile. The said witness, not only deposed against the prosecution but also denied the signature in Ext.P2 seizure mahazar. As such, there is no independent evidence to corroborate the version of PW3 regarding seizure of the contraband articles. It is pertinent to note that regarding the place from where the contraband article was seized, there is no consistent case as to whether it is from the kitchen of the toddy shop or from the 'chaippu'. Under the above unsettled factual position, the non-examination of the owner of the building is fatal to the prosecution. It is true, by examining PW7 and marking Ext. P5 and P6, the attempt of the prosecution was to establish that the building in question was in the possession of the appellant. Exts.P5 and P6, are allegedly Crl.Appeal No.2499 of 2007 14 executed by the owner of the building, but he was not examined. If the owner of the building was examined, the defence would have been in a better position to elicit from him regarding the facts that whether the kitchen or the 'chaippu' mentioned above belonged to the owner and whether the said portion was given to the appellant on rent. It is also relevant to note that though the functioning of the toddy shop in question has been stopped, as per the evidence of PW2, the back door of the toddy shop remained open which would further show that anybody can have free access to the building. If that be so, I am of the view that the prosecution has miserably failed to establish its case beyond doubt regarding the actual place of occurrence and the same was in the possession of the appellant. In the absence of independent evidence regarding the actual place of occurrence and its possession, the possession alleged against the appellant by the prosecution itself is under the shadow of doubt, and the prosecution miserably failed to clear such doubt and on the other hand, the Crl.Appeal No.2499 of 2007 15 acquittal of the first accused, strengthened the doubt against the prosecution case. 16. After having acquitted the first accused, the trial court convicted the accused/appellant, even in the absence of any link evidence to connect the appellant with the alleged seizure, but with the aid of Section 64. Section 64 of Abkari Act reads as follows:- "64.Presumption as to commission of offence in certain cases:-In prosecutions under Section 55, Section 55B, Section 56A, Section57, Section 58, Section 58A and Section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that Section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under Section 8 or Section 55 or Section 55B or Section 56 or 56A or Section 57 or Section 58 or Section 58A or Section58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence;”(Emphasis supplied) On a reading of the above section and on considering the facts and circumstance involved in the case, it can be seen Crl.Appeal No.2499 of 2007 16 that the trial court has miserably failed in correctly understanding the provisions contained therein and applying the same in the facts and circumstances involved in the present case. On a close analysis of Section 64 of the Kerala Abkari Act, it can be seen that it is mandatory on the court that it “shall presume” that the accused has committed offence enumerated therein. 17. Section 4 of the Indian Evidence Act, 1872 defines the words “may presume”and “shall presume” which read as follows:- “4. "may presume."- whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. "shall presume."-whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” On going by the above definition, it is further clear that the court has given a discretion of either to raise the presumption or not in the case of first clause. But in the case of the second clause, it is mandatory on the court to raise the presumption. Going by the words employed in Crl.Appeal No.2499 of 2007 17 Section 64 of the Kerala Abkari Act, it is specific that the presumption envisaged by the said section is mandatory in nature and therefore the court has no option or discretion. It is also crystal clear from the clause contained in the said section, i.e., “until the contrary is proved” the said presumption is not irrebuttable, which means even if the prosecution succeeded in establishing at least a prima facie case so as to enable the court to draw a mandatory presumption in favour of the prosecution, it is still open to the accused to rebut the same by proving the "contrary" with respect to the first part of Section 64 and with respect to the second part “by establishing that all due and reasonable precautions were exercised by him to prevent the commission of such offence”, which is relevant in the case of the appellant. 18. In this juncture, it is relevant to note that the first part of Section 64, is not applicable against the appellant, especially in the light of the facts and circumstances involved in the case and he being the licensee of the toddy Crl.Appeal No.2499 of 2007 18 shop. If the allegation is that the appellant was found in possession of the contraband article either directly or indirectly, probably he is bound to discharge the burden of rebutting the presumption, showing satisfactory explanation and account as to the alleged presence and possession of the contraband article. 19. But, in the present case, prosecution has no such case against the appellant and though such a case was raised against the 1st accused he has been acquitted by the trial court. Still then, the trial court, invoked Section 64 of the Act, to fix the liability on the appellant. The 2nd part of Section 64 deals with the liability of the holder of the licence or permit under the Act. 20. The situation contemplated and designed by Section 64 of The Abkari Act is entirely different one. The aim and object of the Act, as indicated in the preamble of the Act, is to consolidate and amend the law connected with the import, export, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs. Crl.Appeal No.2499 of 2007 19 Section 8(1) prohibits all the acts enumerated therein connected with the substances indicated therein and Sub Section 2 of Section 8 prescribe the punishment for the contravention of Section 8(1). Further Section 18-A of the Act, deals with the grant of exclusive or other privilege of manufacture etc, on payment of rentals. In exercise of powers conferred under Section 18-A and 29 of the Act, the Kerala Abkari Shops Disposal Rules 2002 (hereinafter referred for short as “Rules”only) and subsequent Rules were promulgated as per which, shops namely “Abkari Shop” or “Shop” means “Toddy Shop”or a Foreign Liquor 1 Shop are being established for the purpose of carrying out the business permitted under Section 18-A of the Act. Rule 2(c) of the above Rules, defines “Toddy Shop” as a shop where the privilege of possession of toddy for sale to the public with the privilege of consumption on the premises is allowed. From the above definition of “Toddy Shop”and the provisions of the Act referred above and the Section of offences mentioned in Section 64 of the Act, it can be seen Crl.Appeal No.2499 of 2007 20 that exclusive privilege, was given and simultaneously high duties and responsibilities are also imposed on the licensees or the permit holder of a Toddy Shop. Hence, if there is any violation or contravention of the Act, Rules or the licence conditions at the instances of the licensee or permit holder, it will entail in a very serious social and legal consequences. Under the guise of licence or permit, nobody shall be allowed to carry on illicit and illegal business of liquor and transportation and sale of spurious and illicit liquor. On a careful scrutiny of various provisions contained in this Act and Rules, it can be further realised that those provisions are generally procedural, and particularly preventive, punitive and remedial in nature and the rule making authority was very particular in enacting such provisions, considering the shocking factors like illegal transportation of spurious and illicit liquor and intoxicating substance and its sale and the inevitable result of liquor tragedy. 21. When Section 64 of the Act is examined in the above legal and factual background, I am of the view that Crl.Appeal No.2499 of 2007 21 in order to discharge the burden of an accused in rebutting the presumption, it is not sufficient to give a mere explanation or creating a doubt. In the first part of Section 64, the words used namely “until the contrary is proved” and the words used in the 2nd part of the same Section namely “unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence”, indicate the heavy burden on the accused. Section 3 of Indian Evidence Act 1872 define “Proved” as “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists” and “ Disproved” as “A fact is said to be disproved when, after