IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 282 of 2002() ----------------------- SC.246/2001 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- MANOJ S/O.SAHADEVAN,KANNOLI HOUSE, INCHAMUDI P.O.,THRISSUR 680 564 BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM PUBLIC PROSECUTOR SMT.PUSHPA LATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN,J. ----------------------------- Crl.A.NO.282 OF 2002 -------------------------- Dated this the 28th day of April 2009 ------------------------------------- JUDGMENT Accused is the appellant. He was prosecuted for the offence punishable under Section 55(a) and (i) of the Kerala Abkari Act, hereinafter referred to as 'the Act' on a report filed by the Excise Range Inspector, Cherpu. He pleaded not guilty to the offences. The learned Additional Sessions Judge, after trial, found him guilty of the offence under Section 55(a) of the Act and convicted him thereunder, sentencing him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- with default term of simple imprisonment for six months more. He was found not guilty of the offence under Section 55(a) of the Act and acquitted of that offence. Aggrieved by the conviction and sentence imposed for the offence Crl.A.No.282/2002 2 under Section 55(a) of the Act, he has preferred this appeal. 2. The gist of the prosecution is that Excise Range Inspector (PW1) with an excise party, was conducting patrol duty on 06/09/1999 in areas within his jurisdiction. While so, at about 1.30 p.m, he found the accused carrying a big shopper bag coming from the opposite direction through a public way running through Inchamudi village. Seeing the excise party, the accused got perplexed and he attempted to make himself scarce. He was intercepted and the bag in his possession was examined which revealed five bottles of foreign liquor. The five bottles, one bottle of 750 ml labelled A1 Doctor's brandy, three bottles each having a capacity of 375 ml all labelled as Honey Blend Pure Brandy, and another 750 ml bottle labelled as Bees Favourite Gray Brandy, all together contained a quantity 4.125 ml of foreign Crl.A.No.282/2002 3 liquor. The first two items had stickers of Beverages Corporation, and the last item had no such sticker, but a label disclosing its manufacture in Goa, outside the State. The accused had no authority or licence to keep the contraband detected in his possession. After collecting one bottle from each of the three items as samples and sealing them at the spot, Ext.P1 seizure mahazer was prepared, and the sample and residue were taken into custody. The accused was arrested and, later, after production before court he was enlarged on bail. Investigation of the crime was taken over by PW5, Excise Inspector, who, on its completion, laid the charge before the court indicting the accused for the offences punishable under Section 55(a) and (i) of the Act. 3. After committal and the case made over to the Additional Sessions Judge for trial and disposal, the accused appeared in response to Crl.A.No.282/2002 4 summons. After complying with the formalities, the learned Additional Sessions Judge framed charges against the accused under Section 55(a) and (i) of the Act against the accused, to which he pleaded not guilty. The prosecution examined PWs 1 to 5, got marked Exts.P1 to P6 and identified MO1 and MO2 series to prove his case. The accused maintained his innocence when questioned under Section 313 Cr.P.C. No defence evidence was adduced. The learned Sessions Judge after appreciating the materials produced found the accused guilty of the offence under Section 55(a) of the Act and he was convicted and sentenced thereunder as indicated earlier. Impeaching the legality, propriety, correctness of conviction and sentence, the accused has preferred this appeal. 4. I heard the learned counsel for the appellant and also the learned Public Prosecutor. The learned counsel for the appellant assailed the Crl.A.No.282/2002 5 conviction as unsustainable under law and facts contending that other than the evidence of the excise officials, which is impeached as highly interested, biased and partisan, the prosecution has not let in any independent evidence to prove its charges imputed against the accused. The evidence of excise officials, it is submitted, is mutually conflicting and contradictory as regards the place of seizure of contraband, the description of the bag in which the bottles were kept, and also even the colour of the liquid in the bottles seized, submits the learned counsel. Serious contradictions in the evidence of the excise officials on the above aspects render their evidence, according to the counsel, unworthy of any value. Another challenge canvassed by the counsel is the absence of any record on the materials produced by the prosecution to establish as to when the sample bottles were sent for examination to the Crl.A.No.282/2002 6 laboratory and also the identity of the persons who handled the articles. Requisition for analysis submitted by the excise official has not been exhibited in evidence is highlighted by the counsel as a serious lacuna vitally affecting the merit of the prosecution of the accused for a grave offence under the Act. Reliance is placed on Sasidharan v. State of kerala [2007(1)KLT 720] to contend that the prosecution has to lead link evidence to satisfy the court that the sample taken from the contraband liquor seized from the accused had reached the chemical examiner in a fool proof condition, for which, according to the learned counsel, the exhibition of the requisition slip submitted by the Excise inspector, examination of the court staff who handled the sample and also the person who carried the sample to the laboratory for analysis are absolutely essential. Such link evidence has not been produced in the case is Crl.A.No.282/2002 7 commented upon by the counsel to impeach the conviction. No documentary evidence has been exhibited and proved in the case as to when the seized articles were produced is also pointed out by the counsel to assail the conviction. In the alternative, the learned counsel urged that even if the prosecution allegations imputed against the accused are found acceptable on the basis of the materials produced, still, no charge under Section 55(a) of the Act, leave alone conviction thereunder, can be sustained against the accused. Placing reliance on Raman v. State of kerala [2007 (2)KLT 223], the learned counsel contended that in order to constitute an offence under Section 55(a) of the Act, the mere possession of liquor with the accused/person proceeded against is not sufficient, and it must be further shown that such possession of liquor was in the course of import, export, transport and transit of such goods. So much so, Crl.A.No.282/2002 8 according to the counsel, even if possession of foreign liquor in excess of the prescribed quantity is established against the accused, on the basis of the materials produced before the court, at the most, he is liable to be convicted only for the offence under Section 63 of the Act and not under Section 55(a) of the Act, as held by the learned Sessions Judge. 5. I have perused the records of the case giving consideration to the submissions made by the learned counsel. I do not find merit in the challenge pressed into service by the learned counsel that the evidence of the excise officials for acceptance requires corroboration from independent sources. The evidence of excise officials is also entitled to the same consideration as in the case of any other witnesses examined before the court. Merely because the witness is a public official involved in the Crl.A.No.282/2002 9 detection of the offence, no different yardstick for appreciation of his evidence can be resorted to. Corroboration, needless to point out, is not a rule of law, but, one of prudence. It is for the court to decide after scrutiny of the evidence whether testimony of a witness is reliable and credit worthy. There is contradiction in the evidence of the excise officials PW1, the Excise Inspector and PW2 the Preventive Officer both involved in the detection of the offence and the seizure of the contraband as regards the place of seizure, the description of the bag in which the bottles were kept, the colour of the liquid in the bottle which had been highlighted by the learned counsel for the accused to impeach the merit of the prosecution as also the conviction, on scrutiny of the materials, especially, the evidence of PW1 and PW2, is found to be not worthy of any value. Going through the testimonies of PWs 1 and 2, I do not Crl.A.No.282/2002 10 find any substance in the argument advanced by the learned counsel that with respect to the scene of crime, the place where the accused was apprehended with the contraband, any contradiction worth mentioning is available or brought out when these witnesses were subjected to cross-examination. PW1 has stated Inchamudi as the scene of crime; whereas PW2 has stated the place as a public way leading from Cherpu to Chirakkal in Inchamudi village and at a spot beside a spare parts shop. Apparently there was no contradiction as regards the place of occurrence in the evidence of these officials witnesses PWs 1 and 2; but it is seen in cross- examination of PW2 when he was questioned whether he had stated to the investigating officer the place where the accused was apprehended with the contraband was in Chirakkal Desom, the witness denied of having made such a statement. When PW5, the investigating officer was examined, no Crl.A.No.282/2002 11 reference was made as to the alleged statement referred to above as having been stated by PW2 when his statement was recorded by him. Then as regards the colour of the liquid in the bottle and also that of the bag, both of which had been projected by the counsel contending that different and conflicting versions thereof had been stated by PWs 1 and 2, I do not find any basis. MO2 is the bag in which the contraband was kept by the accused. Suggestion made to PW1 that it was in rose colour was denied by that witness stating that it was red in colour. PW2 was not questioned anything about the colour of the bag. Particulars of the big shopper bag MO2 as having the picture of two birds imprinted in it as recorded in Ext.P2 mahazer prepared for the seizure of the bag, was deposed by PW1 during his examination. There is no discrepancy in the evidence of PWs 1 and 2 as regards the colour of the bag, leave alone any Crl.A.No.282/2002 12 contradiction as canvassed by the learned counsel. Of course, as regards the colour of the liquid in the bottles PW2 had stated in evidence during his cross-examination that the bottles contained brandy of yellowish colour. In Ext.P2 mahazer, the colour of the liquid in the bottles was stated as that of black tea. PW1 was not questioned regarding the colour of the liquid in the bottles. Statement made by PW2 that the liquid in the bottles was of yellowish colour as different from the colour of black tea is an innocuous circumstance not affecting the merit of the prosecution case. At any rate, there was no contradiction in the evidence of PWs 1 and 2 as regards the place where the accused was apprehended with the contraband, the colour of the bag in which the bottles were kept and also the colour of the liquid in the bottles as contended by the counsel to impeach the prosecution case. Non-production of the Crl.A.No.282/2002 13 requisition submitted by the investigating officer for analysis of the sample, non-examination of the court staff to handle the samples after production before the court and also the official who transported the sample bottles to laboratory for analysis which had been canvassed by the learned counsel as essential, and part of the linked evidence, to prove the culpability of the accused for the offence imputed, I find that it cannot be considered in isolation without reference to the totality of the proved facts and circumstances involved in the case. The accused had no case that any prejudice had been caused by him by the non- production of the requisition slip and non- examination of the officials who handled the samples. When PW1 the excise inspector, PW2 the Preventive Officer and PW5 the investigating officer were examined, it is seen, no challenge was made as regards the steps taken for sending the Crl.A.No.282/2002 14 samples for analysis. When there was no reason to doubt that the samples collected from the contraband had been sent for analysis untampered and also in fool proof condition, in the absence of any material to show that any prejudice had been caused to the accused by the absence of the link evidence projected by the counsel, it is futile to contend that the prosecution and trial are vitiated on account of the absence of such evidence. The decision cited by the counsel Sasidharan v. State of kerala [2007(1)KLT 720] has no application to the facts of the case. Facts involved in that case would show that the sample was alleged of having been collected after production of the contraband article before the court; but no evidence was brought out as to who collected the sample. In fact, in that case, there was no material to show that sample was taken from the can produced before court. In that context, it was observed that the Crl.A.No.282/2002 15 non-examination of the concerned clerk of the court who collected the sample from the can and forwarded the sample for analysis was fatal to the prosecution. In the present case, samples were collected and sealed at the spot immediately after the seizure of the contraband from the accused and that too in the presence of independent witnesses as shown by Ext.P2 mahazer and the evidence of PW1 and PW2, the excise officials involved in the detection of the offence and seizure of the contraband from the possession of the accused. The accused has not even raised any challenge during the examination of PWs 1 and 2 and also PW5, the investigating officer, that the sample collected was tampered before sending it for analysis or of any prejudice having been caused to him in the handling of the samples. So, that challenge canvassed by the counsel to assail the conviction also fails. Crl.A.No.282/2002 16 6. The evidence of PWs 1 and 2, the excise officials clearly demonstrated that the accused was apprehended with the contraband at the time of the alleged seizure. The learned Sessions Judge who had the opportunity to record their evidence found their testimony reliable, credit worthy and acceptable. After going through their evidence, I find no reason to take a different view. I have already found that the challenges canvassed to impeach the collection of sample from the contraband seized, the steps taken for analysis of the sample etc do not in any way affect the merit of the prosecution case and the accused had not shown that any prejudice having been caused to him on account of any of the above factors. The accused had no authority or licence to keep the contraband detected in his possession and the quantity of the foreign liquor seized from him was much above the permitted quantity. Sample collected after Crl.A.No.282/2002 17 analysis has shown that the contraband contained ethyl alcohol of various percentage all above 35% as evidenced by Ext.P4 analysis report. The proved facts heads established in the case lead to the inescapable conclusion that the accused had kept in his possession the contraband seized, without any permit or valid authority, in contravention of the provisions of the Kerala Abkari Act. 7. The short question which emerges then for consideration is what is the offence committed by the accused. The court below found him guilty of the offence under Section 55(a) of the Act and convicted him thereunder. The learned counsel for the accused relying on Raman v. State of kerala [2007(2)KLT 223] has contended that unless the prosecution establish that possession of contraband liquor was incidental or in connection with its export, import, transport or transit, the accused cannot be convicted for the offence under Section Crl.A.No.282/2002 18 55(a) of the Kerala Abkari Act; but only under Section 63 of the Act. The evidence produced in the case would show that out of the five liquor bottles possessed, four of them had labels of Beverages Corporation and the remaining one had a label indicating it was manufactured in Goa, outside the State. The foreign liquor possessed by the accused was in excess of the permitted quantity which at the relevant time was 1.5 litres. Section 10 and 11 of the Act mandate that no liquor or intoxicating products exceeding the quantity prescribed by the Government be transported from one place to another within the State without permit for such transport issued by an empowered officer. Where one of the bottles covered by the contraband is found to be imported, the bottle of brandy manufactured in Goa and the accused had no permit to possess such bottle of liquor and the whole contraband possessed by him exceeded the Crl.A.No.282/2002 19 permitted quantity, which, at the relevant time, was 1.5 litres of brandy, it is futile to contend that the offence proved against the accused does not fall under Section 55(a) of the Kerala Abkari Act. The proved facts of the case would show that possession of 5 bottles of foreign liquor, one of which manufactured outside the State, was incidental with import in contravention of the Act. Import has been defined under Section 3(16) of the Act as bringing into the State. A foreign liquor manufactured outside the State when brought within the State without permit or authority amounts to an illegal import. In that view of the matter, I hold that the accused was rightly convicted by the court below under Section 55(a)of the Kerala Abkari Act. With respect to the sentence imposed, having regard to the quantity of foreign liquor seized from the possession of the accused, I find simple imprisonment for six months and fine of Crl.A.No.282/2002 20 Rs.1,00,000/-, the minimum prescribed by the statute, will be sufficient to meet the ends of justice. The appeal fails except to the extent of modification of sentence reducing the substantive term of imprisonment from one year to six months, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE jsr Crl.A.No.282/2002 21 S.S.SATHEESACHANDRAN,J Crl.A.No.282/2002 O R D E R 28TH DAY OF APRIL 2009