IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 CRL.A.No. 2007 of 2009() ------------------------ SC.102/2009 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD .................... APPELLANT(S): -------------- 1. JAYASANKAR, S/O. KANTHASWAMI, AGED 34 YEARS, ELACHIPALAYAM, TIRUCHAMCODE, NAMAKKAL TAMIL NADU. 2. SIVAMALAI, S/O. VARADA NADAR, AGED 45 YEARS, RANGASWAMI PILLAI, STREET, TIRUCHAMCODE , NAMAKKAL, TAMIL NADU. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE RANGE OFFICER, CHITTUR IN CR. NO.10/2006 PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.2007 of 2009 ----------------------------------------------- Dated this 30th day of March, 2011. JUDGMENT This appeal arises from the conviction and sentence passed against the appellants to undergo rigorous imprisonment for 5 (five) years each and to pay fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year for offence under Section 55(a) of Abkari Act (for short 'the Act'). 2. According to prosecution, on 24.7.2006 at about 1.45 p.m. the appellants (A1 and A2) were found transporting 672 litres of of spirit in a Toyota Qualis Van. The first accused was driving the vehicle and the 2nd accused was sitting in the vehicle and on the back side of the vehicle, 24 cans containing spirit were kept. The vehicle was intercepted and when the accused were questioned, they had no explanation. They did not have any permit also to transport the same. Hence they were arrested and the articles were seized. Sample was taken and a case was registered. After investigation, a report was [Crl.A.No.2007/2009] 2 filed against the appellants. 3. PWs 1 to 6 were examined and Exts.P1 to P9 and MOs. 1 to 3 series were marked on the side of prosecution. The accused did not adduce any evidence. They did not put forward any specific case in defence except by saying that they are innocent of the allegations made. The trial court framed charge for offence under Section 55(a) stating that appellants “transported 672 litres of spirit” and on the basis of the evidence adduced, it was held that accused nos. 1 and 2 transported the spirit, without any permit and hence, they were convicted for offence under Section 55(a) of the Abkari Act. 4. Heard both sides. Perused the records. Learned counsel for the appellants argued that there is some discrepancy in the registration number of the vehicle involved in this case. A number was seen exhibited on the vehicle as KL-9-J-5965 but it is alleged to be a fake number. Neither the number plate was seized nor any investigation was conducted into the question whether the number plate was fake or not but there is only a [Crl.A.No.2007/2009] 3 mere allegation that it is a fake number. If it is not a fake number, the whole picture will be different. It may even tell upon liability of appellants. 5. An attested Photostat copy of the R.C. Book, Ext.P4, was seized from the vehicle. The number which is shown in Ext.P4 is stated to be the actual number of the vehicle from which the articles were seized. But, accused had a definite case that neither the R.C.Book nor the number stated therein has anything to do with actual the details of the engine and the chassis of the relevant vehicle. Therefore, a petition was filed as Crl.M.P.No.2320/09 for a direction to produce the vehicle seized in this case, for verification of the “number”. 6. It is also pointed out that the vehicle is still with the Department. The vehicle is sold in auction in the name of Assistant Commissioner. It can be easily made available for inspection. But, the prosecution opposed the petition and the court dismissed it as per order dated 27.8.2009. Because of such dismissal, appellant has lost an opportunity to establish their case that the vehicle involved is totally different from the [Crl.A.No.2007/2009] 4 vehicle referred to in Ext.P4, RC book. A request was made by accused to afford an opportunity to prove the defence case at the early stage of the case itself. 7. By dismissal of above petition an opportunity was denied to accused to establish their defence. A criminal M.C. was filed before this Court and this Court observed that if the Sessions Judge, on hearing the case, finds that personal examination of the vehicle is necessary, the order passed in the Crl.M.C.No.2963/09 will not stand in the way of doing so. It was also observed that the petitioners (appellants herein) were also entitled to challenge the above order along with the final order, if it goes against them. But, trial court did not physically verify the relevant numbers. 8. Learned counsel for appellants argued that appellants are entitled to challenge the identity of the vehicle which was actually involved in this case, and this can be done only by physical verification. In the light of the challenge, at least, trial court ought to have verified the details especially since the relevant facts were brought out to the notice of the trial court, [Crl.A.No.2007/2009] 5 it is submitted. An adverse inference ought to be drawn against the prosecution since prosecution withheld relevant facts and hence, appellants may be acquitted, it is argued. 9. Learned Public Prosecutor argued that the appellants did not have any such case during the trial and no questions were put to any of the witnesses to disclose the present defence relating to the relevant numbers. It is also pointed out that the vehicle was confiscated and sold in auction and it is highly improbable that there would be some mistake in the identity of the vehicle, which was sold. The arguments raised is of no worth, it is submitted. 10. Learned counsel for the appellants also argued that leniency may be shown in the question of sentence. Appellants are not involved in any other case. They are innocent of the allegations made and they have no role in the transport. It is also submitted that the article allegedly transported is not containing any noxious substance, as seen from the Chemical Analyst's report and hence interference may be made in the question of sentence. The appellants are in custody for the [Crl.A.No.2007/2009] 6 past one year and six months. They also underwent pre-trial detention. Altogether, they were in custody for one year and 9 months, it is submitted. 11. On hearing both sides and on going through the records, I find that the act allegedly committed by appellants is transporting spirit. “Transport” under Section 3(18) of the Act means “move from one place to another within the State.” As per Section 10, no liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribed by notification in the Gazette either generally for the whole State or for any local area, shall be “transported” except under a permit. 12. In a case involving illegal “transportation” of liquor, prosecution has to establish that accused moved liquor exceeding quantity prescribed by notification from one place to another, lying within the State of Kerala. To establish an offence under Section 55(a) of the Act, prosecution has to prove that a person “transported” liquor in violation of Section 10 of the Act. That means, all the requirements of Section 10 [Crl.A.No.2007/2009] 7 have to be proved. But, in this case, trial court did not look into whether it was a case of transportation of spirit as defined in the Act. 13. As per the prosecution case itself, as revealed from Ext.P3, the article is stated to be taken from “Bangalore” to “Alathur”. But, in the evidence of PW1, it is stated that the article was taken from “Tamil Nadu” to Kerala. Bringing of liquor from a place lying outside the State into the State is “import” ant not “transport” as seen from definition of these expressions under the Act. Nothing is brought out in evidence to show that the article was moved from one place to another place lying within Kerala State. 14. The trial court did not apply its mind to the requirements of Section 10 read with Section 3(18) of the Act. There is no case for prosecution that accused was in “possession” of spirit. Learned Public Prosecutor pointed out that the charge was laid for illegal possession of spirit, but trial court omitted to frame such charge. It is true that in the final report filed there is an allegation of possession also but in [Crl.A.No.2007/2009] 8 the charge framed by the court, such allegation is absent. 15. In the above circumstances, I find that the conviction and sentence passed against the appellants cannot be sustained. In a case in which there is allegation of illegal “import”, “transport” or “possession”, trial court will have to identify what exactly is the specific act committed by accused on the basis of the records placed before it. The court shall frame charge for the illegal act which is committed by the accused and proceed against him only for the actual act which is allegedly committed by him. 16. From the evidence placed before the court, I find it difficult to convict the accused for 'transportation', because evidence is lacking to show that contraband article was moved from one place to another within the State. It is also not clear whether there is any investigation into the question from which place to the other the article was moved. I have already pointed out the discrepancy in the evidence relating to the place from where article was brought to Kerala. It is pertinent to mention in this context that bringing of an article from a [Crl.A.No.2007/2009] 9 place situated outside Kerala to a place lying within Kerala constitutes “impart” and not “transport”. 17. On the facts and circumstances of the case, however, I am not inclined to acquit the accused, but I find it necessary that the matter be reconsidered and disposed of in the light of the observation made in this judgment in accordance with law. Trial court has failed to consider the clinching issue, on the basis of the evidence adduced in this case. The trial court may also consider whether it is necessary to verify the chassis number and engine number of the vehicle involved. In the result, the following order is passed: 1) The conviction and sentence passed against the appellants (A1 & A2) under Section 55(a) of Abkari Act are set aside. 2) The case is remanded to trial court for fresh consideration and disposal in accordance with law, in the light of the observations made in this order. 3) The accused shall appear before the trial court on [Crl.A.No.2007/2009] 10 receipt of notice to them or their counsel appearing in the trial court from the lower court. 4) The Registry shall issue release memo forthwith, with a direction to the appellants to appear before the trial court on 24.5.2011. The appeal is allowed by way of remand. K.HEMA, JUDGE. Krs.