IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.A.No. 2015 of 2003() ------------------------ SC.467/2001 of ADDL. SESSIONS COURT, FAST TRACK COURT-II, PALAKKAD .................... APPELLANT/ACCUSED:- -------------------------- K.R.ARAVINDAKSHAN S/O. NARAYANAN NAIR, KALLAKKAD VEEDU, KUNAKKARA TALUK, PARAVOOR, ERNAKULAM. BY ADV. MR. P.VIJAYA BHANU MS. P.MAYA RESPONDENT/COMPLAINANT:- ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL. A. NO. 2015/2003 ORDER ON CRL. M.A. NO. 13018/2003 IN CRL. A. NO. 2015/2003 DISMISSED 25.09.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 2015 of 2003 ---------------------------------------- 25th day of September, 2009. JUDGMENT V. RAMKUMAR, J. -------------------------------------- Crl. Appeal No. 2015 of 2003 --------------------------------------------- Dated: 25th day of September 2009 JUDGMENT The appellant who was the accused in S.C. 467/2001 on the file of the Addl. Sessions Court, Fast Track – II, Palakkad challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 55 (a) of the Abkari Act. 2. The case of the prosecution as unravelled by the oral and documentary evidence in the case is as follows:- During the period 1998, P.W.1 (Jayanthi Vasan) was the Excise Inspector posted at the Walayar Check Post. He along with P.W.2 the Excise Preventive Officer and others were on duty at the check post . On 11-7-1998, at about 4.30 a.m. While P.W.1 and his excise party were checking the vehicles which came along the Walayar check post a lorry bearing Reg. No. KL-10 A 1134 came with some commodities which were covered by tarpaulin. When P.W.1 asked the driver as to what was the load carried in Crl. Appeal No. 2015 of 2003 -:2:- the lorry, the driver replied that they were tiles. Getting suspicious P.W.1 asked the driver to park the vehicle near platform No. I and to remove the tarpaulin. The driver then asked the appellant who was in the lorry to remove the tarpaulin and show PW1 the commodities carried in the lorry. After giving those instructions, the driver proceeded in the direction of the sales tax check post along with certain documents under the pretext of reporting at the check post. Thereafter P.W.1 and his excise party conducted a search of the load inside the lorry in the presence of the appellant and Pws 3 and 4 who were head load workers rendering their services to the excise party. A detailed examination of the lorry revealed several boxes of Johnson tiles. After removing few packets of tiles the excise party came across large cases bearing the labels “National Liquors” and “New Master XXX Rum”. PW1 opened one of the cases to find that it was containing XXX Rum in 3216 bottles each of 375 ml. Crl. Appeal No. 2015 of 2003 -:3:- capacity, he opened one bottle and smelt and tasted the contents to find that it was Indian made foreign liquor (IMFL). He convinced the said fact to the witnesses who were present. A detailed examination revealed 82 cases with each case containing 12 bottles each of 750 ml. to make up a total of 984 bottles, 134 cases with each case containing 12 bottles each of 375 ml. capacity to make up a total of 3216 bottles and 61 cases with each case containing 14 bottles each of 180 ml. capacity to make up a total of 2928 bottles. Thus, a total number of 277 cases altogether containing 7128 sealed bottles of IMFL bearing the label “New Master XXX Rum” were found in the lorry. P.W.2 took as sample a bottle containing 750 ml. of New Master XXX Rum after giving the marking 'B' on a label. Likewise, he took as sample a 375 ml. bottle and affixed a label containing the marking A . Both the sample bottles were sealed and taken into custody for the purpose of analysis. The entire bulk load of 7126 bottles of Crl. Appeal No. 2015 of 2003 -:4:- IMFL and the two bottles taken as sample as also the lorry were seized under Ext.P1 seizure mahazar. The appellant was arrested. On interrogation, the appellant was not able to produce any documents to show that the bottles of liquor were lawfully possessed. Since the 7128 bottles of IMFL were found in possession of the appellant (who introduced himself as the owner of the lorry) in contravention of the provisions of the Abkari Act and the Rules, he was arrested. The appellant told P.W.1 that his brother-in-law Balakrishnan was employed in the Aluva Palace Branch of the Co-operative Bank, Aluva. The factum of arrest of the appellant was attempted to be communicated to the said relative through telegraphic message. But since the postal employees were on strike, P.W.1 could not do that. He prepared Ext.P3 arrest memo and gave the appellant a copy. The bulk quantity of 277 cases containing 7128 bottles of IMFL were seized under Ext.P1 seizure mahazar to which P.W2 the Excise Crl. Appeal No. 2015 of 2003 -:5:- Preventive Officer and PWs 3 and 4 the independent witnesses affixed their signatures. The accused along with the contraband liquor bottles, the sample bottles and the seizure documents were then taken to the Palakkad Excise Range Office from where P.W.5 the Excise Inspector registered Ext.P4 Crime and Occurrence Report and registered the case as CR 9/1998. Ext.P2 is the Crime and Occurrence Report prepared by P.W.1 from the spot of detection itself. Exts.P1 seizure mahazar, P2 Crime and Occurrence Report. and P4 Crime and Occurrence Report registered by PW5 all reached the Court of the Judicial Magistrate of the First Class-I, Palakkad on 11-7-1998 itself. On 13-7-1998 P.W.1 submitted Ext.P7 report before the magistrate to the following effect:- “There are technical difficulties in producing the 7128 bottles excluding the two sample bottles of IMFL and 500 boxes of Johnson tiles seized from the lorry involved in C.R. 9 of 1998. Hence, permission may Crl. Appeal No. 2015 of 2003 -:6:- kindly be accorded to keep the above properties excluding the sample bottles in the Palakkad Range Office itself.” On 13-7-1998 itself the Magistrate passed an order on Ext.P7 as follows:- “The Excise Inspector, Palakkad Range is permitted to keep the properties in the range office in his safe custody until further orders”. On 14/7/1998, as revealed by the property list available in the lower Court records the two sample bottles were produced before the J.F.C.M.I Palakkad and were received as item No. 147/1998. During the course of investigation on 7.8.1998 P.W5 produced the original of Ext.P5 forwarding note before the Magistrate requesting to dispatch the sample bottles involved in C.R. No. 9 of 1998 to the Chemical Examiner, Ernakulam for chemical analysis. As per letter dated 7-8-1998 itself the learned Magistrate forwarded the two sample bottles one of 750 ml. Crl. Appeal No. 2015 of 2003 -:7:- capacity and the other of 370 ml. capacity to the Chemical Examiner , Ernakulam for analysis. The samples were dispatched through the Excise Guard, Sudarsan and was received by the Chemical Examiners' Laboratory on 7-8-1998 itself. The sample bottles were received with their seals intact. Ext.P6 is the certificate of Chemical Examiner dated 28-4-1998. It shows that the samples contained 41.94 and 41.35 percent by volume of Ethyl Alcohol and the colour and appearance of the contents of the bottle was a clear brownish liquid. Before the trial of the case, on the directions of the trial Court three bottles each from the 375 ml. bottles, 750 ml bottles and 180 ml. bottles were produced from the Excise Range Office, Palakkad and marked through P.W1 as MO1 series, MO2 series and MO3 series respectively. 3. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- Ext.P1 mahazar shows that the bulk quantity consisting of Crl. Appeal No. 2015 of 2003 -:8:- 7128 bottles allegedly of IMFL were having the labels New Master XXX Rum . The prosecution has not produced any single document other than Ext.P1 Mahazar to show that such large quantities of IMFL were seized. As per Sec. 40(3) of the Kerala Abkari Act, every article seized under Sec. 34 shall be forwarded without unnecessary delay either to the officer in-charge of the nearest police station or to the officer empowered or the Abkari Inspector. As per sub-section 5 of Sec.40 the authority or officer to whom any article is forwarded under sub section 3 of Section 40 has to take urgent necessary steps in accordance with law for dispersal of such articles. The prosecution has no case that the bottles seized in this case were disposed of in accordance with section 40 (5) of the Act. Sec. 36 of the Act enjoins that all searches under the provisions of this Act shall be made in accordance with the provisions of the Cr.P.C. As per Sec. 102 (3) Cr.P.C. every Police Officer making a seizure has to forthwith Crl. Appeal No. 2015 of 2003 -:9:- report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property etc. he can give custody of the property to any person on his executing a bond undertaking to produce the property before Court as and when required. Thus, the requirement of law is that the property as far as practicable should be produced before the Magistrate having jurisdiction. (See Alex v. State - 2003(1) KLT(SN)9) Except the two bottles alleged to be sample bottles the prosecution at no stage of investigation or trial had produced the rest of the properties before Court. It was only on the direction of the trial Court that MO1 series, MO2 series and MO3 series were produced before Court. Even the sample bottles were produced only on 14-7-1998. While the labels on the bottles seized under Ext.P1 seizure mahazar show that they are New Master XXX Rum the sample Crl. Appeal No. 2015 of 2003 -:10:- bottles were containing the label “Master XXX Rum”. It cannot, therefore, be safely said that the two bottles were samples taken from the bulk quantity. Hence, it cannot be concluded that the samples which were analysed under Ext.P6 certificate of analysis were the very same samples drawn from the bulk quantities. The prosecution has not adduced any satisfactory evidence to show that the appellant was the owner of the lorry as was stated in Ext.P1 mahazar. Reliance placed by the Court below on Ext.P9 photocopy of the sale letter received from a private financier to hold that the appellant is the owner of the lorry cannot be sustained. The story of the prosecution that the person who was the driver of the lorry slipped away under the pretext of going to the sales tax check post is a story which is too good to be believed. The two independent witnesses P.Ws 3 and 4 did not support the prosecution to any extent. In the face of this evidence, the Court below was not right in convicting the appellant. The appellant Crl. Appeal No. 2015 of 2003 -:11:- cannot be said to be the person in possession of the articles carried in the lorry in question, 4. I am afraid that I cannot agree with the above submissions on behalf of the appellant. The testimony of Pws 1 and 2 regarding the arrival of the lorry at about 4.30 a.m. in the Walayar check post on 11-7-1998 and the checking conducted by P.W.1 and his excise party is fully credible. The driver of the lorry was initially asked as to what was the commodity carried in the lorry. He replied that they were ceramic tiles. Getting suspicious, P.W.1 asked him to remove the tarpaulin cover and show the commodities carried in the lorry. Thereupon the driver directed the appellant who was in the lorry to remove the tarpaulin and reveal the commodities. The driver then craftily slipped away under the pretext of showing the documents at the sales tax check post. The appellant has no case that he was only a gratuitous passenger who had got into the lorry for a lift en route. Even Crl. Appeal No. 2015 of 2003 -:12:- assuming that Ext. P9 attested photocopy of the sale letter received from a private financier indicating that the appellant was the owner of the lorry has to be eschewed from consideration, the fact remains that the appellant was found inside the lorry carrying the contraband liquor and no explanation was offered by him for his presence in the lorry. It can, therefore, safely be inferred that the appellant was found in possession of the lorry including the commodities which in turn included the contraband liquor. 5. As mentioned earlier, the detection was at 4.30 a.m. on 11-7-1998. On the same day itself, Ext.P1 seizure mahazar, Ext.P2 Crime and Occurrence Report prepared by P.W.1 from the spot reached the J.F.C.M. I Palakkad, who was the Magistrate having jurisdiction. It must be remembered that the contraband liquor bottles were unearthed in the midst of the innumerable boxes of Johnson tiles. The manual labour involved in taking out the tiles and thereafter taking the 277 cases containing 7128 bottles Crl. Appeal No. 2015 of 2003 -:13:- at such odd hour of right can only be imagined. On 13-7-1998 itself, P.W.1 sent Ext.P7 report to J.F.C.M- I Palakkad informing the Magistrate that the 500 boxes of tiles and the bulk quantity of contraband liquor could not be conveniently transported to the Court and sought permission to keep the bulk quantities of liquor except the two sample bottles in the Excise Range office, Palakkad,. The report was received by the Magistrate on 13-7- 1998 and on the very same day the Magistrate granted permission as stated by P.W.1. Hence, it cannot be assumed that the alleged seizure of 7128 bottles from the lorry in question was a cock and bull story, particularly, when it was not even faintly suggested to any of the prosecution witnesses that so much quantities of contraband liquor in 7128 bottles were never seized or stored in the Excise Range Office. 6. The production of the sample bottles before the Magistrate on 14-7-1998 cannot be characterized as belated production. It is Crl. Appeal No. 2015 of 2003 -:14:- true that the property list filed before the Magistrate has only described the sample bottles as Master XXX Rum. The word “New” is not mentioned in the property list. From that alone, it cannot be assumed that they were not the samples which were taken by P.W.1 from out of the 7128 bottles of liquor. They were received with their seals in tact before the Magistrate on 14-7-1998 and were received as item No. 147/1998. Thereafter on receipt of Ext.P5 forwarding note on 7-8-1998, the learned Magistrate forwarded the sample bottles on 7-8-1998 itself to the Chemical Examiner, Ernakulam as per a covering letter which is referred to in Ext.P6 certificate of chemical analysis. The certificate shows that the bottles were sealed bottles with the seals intact and that they were received with reference to the letter No. CR No. 9/1998 dated 7-8-1998 issued by the J.F.C.M. I, Palakkad. 7. The statutory power under which the search and seizure were made by P.W.1 is to be located under Sec. 34 of the Abkari Crl. Appeal No. 2015 of 2003 -:15:- Act. As per the said provision, any Abkari Officer is invested with the power to seize any liquor or intoxicating drug from a vessel or conveyance other than a dwelling house without a warrant from any public thoroughfare or open space. The search conducted in this case was from a public road in the vicinity of Walayar check post. The provisions of the Act do not enjoin the production of the properties before the Magistrate having jurisdiction forthwith. Even Section 102 Cr.P.C envisages a seizure report only to the Magistrate in cases where the property cannot be conveniently transported to the court. In the decision reported in Alex v. State – 2003 (1) KLT SN 9, no doubt, it is observed that the property should as far as practicable be produced before the court. But in that case, the samples were not sent for chemical analysis through the court. It is pertinent to note that the statement of PW5 in his chief examination that as per the orders of the Magistrate the bulk quantities of the contraband liquor has been stored in the Excise Crl. Appeal No. 2015 of 2003 -:16:- Office under his safe custody, was not even challenged during cross examination. Moreover, pursuant to the direction by the trial court, three bottles each from 750 ml., 375 ml., 180 ml., bottles were produced before the court through the Excise Office and were marked as MO1 series, MO2 series and MO3 series. Hence the contention of the appellant that the non-production of the bulk quantities of the liquor before the court is fatal to the prosecution, cannot be countenanced. 8. What is revealed by the oral and documentary evidence adduced by the prosecution is that the appellant along with the absconding driver were found in possession of and transporting 2,471 litres of IMFL far in excess of the limit prescribed by the Government as per notification issued under Sections 10 and 13 of the Abkari Act. Hence, they were found in possession of and transporting IMFL in contravention of the provisions of the Abkari Act thereby committing an offence punishable under Section 55(a) Crl. Appeal No. 2015 of 2003 -:17:- of the Abkari Act. The conviction was, thus, rightly entered against the appellant and the same is confirmed. 9. What now survives for consideration is the sentence imposed on the appellant by the court below. An offence under Section 55(a) of the Abkari Act is punishable with imprisonment for a term which may extend to 10 years and with fine which shall not be less than Rs.1 lakh. The court below has sentenced the appellant to rigorous imprisonment for three years and to pay a fine of Rs.1 lakh and on default to pay the fine, to suffer simple imprisonment for six months. The fact that he was aged 50 years at the time of detection in the year 1998 and he has now crossed 61 years as on today, is hardly a reason to show any leniency in the sentence particularly when the learned trial Judge himself has been lenient in awarding only rigorous imprisonment for 3 years. As far as fine is concerned, what has been awarded is only the mandatory minimum. I, therefore, do not find any good ground for interfering Crl. Appeal No. 2015 of 2003 -:18:- with the sentence imposed on the appellant as well. In the result, this appeal which is devoid of any merit is dismissed confirming the conviction entered and the sentence passed against the appellant. Dated this the 25th day of September, 2009. V. RAMKUMAR, (JUDGE) ani./rv Crl. Appeal No. 2015 of 2003 -:19:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 2015 of 2003 * * * * * * * * * * * * * * * * * * Dated: 24th day of September 2009 JUDGMENT