Kerala High Court
Prashanth Poojari vs State Of Kerala on 1 October, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942
Crl.Rev.Pet.No.348 OF 2016
AGAINST THE JUDGMENT IN CRL.A.No.147/2013 OF ADDITIONAL
SESSIONS COURT-III, KASARAGOD DTD.02.05.2014
SC 206/2011 DATED 10-09-2013 OF ASSISTANT SESSIONS COURT,
KASARAGOD
CP 219/2010 DATED 12-10-2010 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, KASARAGOD
REVISION PETITIONER/APPELLANT/ACCUSED:
PRASHANTH POOJARI,
AGED 29 YEARS,
S/O.DIKKAYYA POOJARI, HOSAMANE HOUSE,
SAYAVA VILLAGE, BELTHANGADI TALUK,
KARNATAKA STATE.
BY ADVS.
SRI.P.V.ANOOP
SRI.G.ANEESH
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI-682 031.
SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 01.10.2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.R.P.No.348 of 2016
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ORDER
This revision is directed against the judgment dated 02.05.2014 in Crl.A.No.147/2013 of the Additional Sessions Judge-III, Kasaragod whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the learned Assistant Sessions Judge, Kasaragod in S.C.No.206/2011 dated 10.09.2013 for the offence punishable under Section 55(a) of the Kerala Abkari Act.
2. The revision petitioner is the 1st accused in S.C.No.206/2011 on the file of the Assistant Sessions Court, Kasaragod. The case arose on a final report submitted by the Sub Inspector of Police, Kumbla Police Station in Crime No.489/2010 alleging offence punishable under Section 55(a) of the Kerala Abkari Act.
3. The prosecution case in brief is that on 20.8.2010 at 8.10 am., the accused 1 and 2 were found Crl.R.P.No.348 of 2016 ..3..
transporting 400 bottles of Indian Made Foreign Liquor having capacity of 180 ml. each by name Honey Master Brandy meant for sale in Karnataka only for the purpose of unauthorized sale in Kerala at Arikkadi Junction on the side of the National Highway in contravention of the provisions of the Kerala Abkari Act and Rules framed thereunder and thereby committed an offence punishable under Section 55(a) of the Kerala Abkari Act.
4. On committal, the accused 1 and 2 entered appearance before the trial court. During the trial, PWs.1 to 6 were examined and marked Exts.P1 to P9 on prosecution side. The accused were questioned under Section 313(1)(b) of the Cr.P.C. Thereafter, they were called upon to enter on their defence. However, no defence evidence was adduced.
5. After having heard both sides, the learned Assistant Sessions Judge, who conducted the trial, Crl.R.P.No.348 of 2016 ..4..
convicted and sentenced the accused 1 and 2 to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month more. Of the above two accused, the 1 st accused alone preferred Crl.A.No.147/2013 before the Sessions Court, Kasaragod. The appeal was dismissed on 02.05.2014 confirming the conviction and sentence imposed by the trial court.
6. PW1 is the Sub Inspector of Police, Kumbla Police Station. He testified that, while he was in the police station on 20.8.2010 at 8 am., he received reliable information that two persons had alighted at Arikkadi from a KSRTC bus coming from Mangalapuram with 4 cardboard boxes in their possession suspected to be containing arrack for being taken to Bambrana. Pursuant to the information received, PW1 and police party Crl.R.P.No.348 of 2016 ..5..
proceeded to Arikkadi Junction and saw two persons standing there with two cardboard boxes each in their hands. On seeing the police party, they tried to run away from the place. However, the police party apprehended them and seized the boxes which contained brandy labelled Honey Master Brandy for sale in Goa only. On examining the liquor in one of the bottles, PW1 and others got satisfied that the bottle contained liquor. The accused were arrested at about 8.15 am. as per Exts.P1 and P2 arrest memos. PW1 seized four boxes contained 400 bottles of brandy having capacity of 180 ml. each. PW1 collected samples and the samples were duly sealed and labelled in accordance with law. The remaining bottles and the empty bottles were packed in the respective boxes and they were seized as per Ext.P3 seizure mahazar. Thereafter, the police party proceeded to the police station along with the accused and registered Ext.P4 FIR for the offence Crl.R.P.No.348 of 2016 ..6..
punishable under Section 55(a) of the Kerala Abkari Act. PW1 produced the sample bottle before the court along with Ext.P5 property list and Ext.P6 forwarding note.
7. PW2, one of the Head Constables attached to Kumbala Police Station at the time of occurrence was a member of the police party who had accompanied PW1 to the scene of occurrence. He supported the testimony of PW1 in full. PWs.3 and 4 are two independent witnesses who were present at the time of occurrence. Both of them admitted their signatures in Exts.P1 to P3 documents. However, they denied having seen the occurrence. According to them, they put their signatures in the documents at the police station. PW6 is the Additional Sub Inspector of Police, Kumbla Police Station who conducted investigation, questioned the witnesses, recorded their statements and filed final report before the court. Crl.R.P.No.348 of 2016
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8. After having heard both sides, the trial court framed charge against the accused on 31.10.2012. The specific allegation levelled against the accused is that on 20.8.2010 at 8.10 am., the accused 1 and 2 were found transporting 400 bottles each containing 180 ml. of Indian Made Foreign Liquor in four cardboard boxes at Arikkadi Junction in Arikkadi Village in contravention of the provisions of Abkari Act and Rules framed thereunder. PW1, the Sub Inspector who detected the offence testified before the court that on 20.8.2010 at 8.10 am. the accused were found transporting 400 bottles of Indian Made Foreign Liquor having capacity of 180 ml. each by name Honey Master Brandy meant for sale in Goa only. However, the final report would indicate that bottles of Indian Made Foreign Liquor having capacity of 180ml. each by name Honey Master Brandy are meant for sale in Karnataka only. Ext.P3 seizure mahazar would show that Crl.R.P.No.348 of 2016 ..8..
PW1 seized 400 bottles of Indian Made Foreign Liquor having capacity of 180ml. each by name Honey Master brandy meant for sale in Goa only. When PW6 was examined before the trial court, specific question was put to PW6 touching the discrepancy which was crept in the final report in respect of the alleged contraband bottles of Indian Made Foreign Liquor seized from the custody of the accused 1 and 2. The final report specifically stated that the bottles meant for sale in Karnataka only. No explanation was offered by PW6 in this regard. The learned counsel for the revision petitioner contended that what was seized by PW1 was not produced before the court.
9. Ext.P3 seizure mahazar was prepared by PW1 at 8 pm. on 20.8.2010. In Ext.P3 seizure mahazar, no sample seal is seen affixed. Ext.P8 inventory was prepared by the Assistant Excise Commissioner, Kasaragod. Ext.P8 Crl.R.P.No.348 of 2016 ..9..
inventory is seen later certified by the learned Magistrate having jurisdiction stating that the inventory prepared in Crime No.489/2010 of Kumbla Police Station is in conformity with the material object verified. The inventory prepared by the authorized officer is not seen proved in this case. In Smithesh v. State of Kerala [2019 KHC 3526] this Court held in paragraph 6 of the judgment as follows:-
"6. The inventory prepared by the authorised officer is not seen proved in this case. The law under Section 53A of the Act is that if the authorised officer has prepared an inventory, and got it certified by the Magistrate having jurisdiction along with photograph, the inventory can be accepted in evidence without examining the person who prepared it. In cases where the properties are not produced in court, the inventory will form substantive evidence proving the seizure. In this case, there is an inventory prepared by the Assistant Excise Commissioner, available in the case records, which was not proved in evidence. No value can be attached to the Ext.P9 report which is only a copy of the report of the Magistrate. The Crl.R.P.No.348 of 2016 ..10..
report of the Magistrate will not have any independent acceptability. It is only a supporting material for the inventory prepared by the authorised officer. But curiously enough, the inventory as such is not seen marked or proved. Even the inventory available as part of the case records is seen signed by the Circle Inspector. No doubt, the Circle Inspector is not the authorised officer appointed under Section 67B of the Act. Below his signature, the court finds something like a counter signature by the Assistant Excise Commissioner. This is not the way to prepare an inventory. Anyway, I need not discuss much on this aspect because the inventory is not proved in evidence."
10. Although the inventory is exhibited in this case through PW6, it is evident that he is not competent to prove the same. In cases where the properties have not been produced in court, the inventory will form substantive evidence proving the seizure. Evidently, Ext.P8 inventory prepared by the Assistant Excise Commissioner available in this case has not been proved in evidence before the trial court.
Crl.R.P.No.348 of 2016
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11. Ext.P3 seizure mahazar, Ext.P5 property list and Ext.P6 forwarding note were prepared by PW1. The sample seal is not seen affixed in Ext.P3 seizure mahazar. However, in Ext.P6 forwarding note, the sample seal is seen affixed. In the absence of sample seal in Ext.P3, it is difficult to hold that what was seized from the scene of occurrence was produced before court by virtue of Ext.P6 forwarding note. Thus, it is clear that the sampling process and preparation of inventory are not proved properly by the prosecution.
12. On going through the entire evidence adduced in this case, it is clear that the prosecution has not succeeded in proving the offence under Section 55(a) of the Kerala Abkari Act against the accused beyond reasonable doubt. Hence the conviction and sentence imposed by the trial court as confirmed by the appellate court are liable to be set aside.
Crl.R.P.No.348 of 2016
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In the result, the criminal revision petition is allowed. The conviction and sentence imposed by the trial court as confirmed by the appellate court are set aside. The revision petitioner/1st accused is found not guilty of the offence punishable under Section 55(a) of the Kerala Abkari Act and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE skj