Kerala High Court
Aithappa Naik vs State Of Kerala on 3 July, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938
CRL.A.No. 898 of 2012 (B)
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AGAINST THE JUDGMENT IN SC 411/2011 OF ADDITIONAL SESSIONS COURT
(ADHOC-III), KASARAGODE DATED 03-07-2012
AGAINST THE ORDER IN CP 72/2011 of J.F.M.C.,KASARAGOD
APPELLANT/ACCUSED :-
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AITHAPPA NAIK, AGED 60 YEARS,
S/O THIMMA NAIK, NR. MANIYAMPARA,
ST.LEORANCE CHURCH,
MANIYAMPARA, MAINE VILLAGE,
KASARAGOD.
BY ADVS.SRI.T.B.SHAJIMON
SMT.GOVINDU P.RENUKADEVI
RESPONDENT/COMPLAINANT :-
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STATE OF KERALA,REP. BY
THE EXCISE INSPECTOR,
BADIADKA EXCISE RANGE,
WHO IS REPRESENTED BEFORE
THIS HON'BLE COURT BY THE
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
R BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2017, THE COURT ON 23.02.2017 DELIVERED THE FOLLOWING:
rkj
"CR"
P.UBAID, J.
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Crl.Appeal No.898 of 2012
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Dated this the 23rd day of February, 2017
JUDGMENT
The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act (the Act) in S.C.No.411/2011 of the Court of Session, Kasaragod.
2. The prosecution case is that at about 6.00 p.m. on 12.12.2007 at Maniyampara on Perla-Kumbla public road (Kasaragod district), the appellant was found possessing 8 litres of Karanataka arrack. The offence was detected by the Circle Inspector of Excise, Badiadka during his routine patrol duty. The accused was arrested on the spot, and the quantity of arrack was seized as per mahazar. The accused and the properties were produced at the Excise Range Office, Badiadka, where an Excise Inspector registered crime and occurrence report. He also produced Crl.Appeal No.898 of 2012 2 the accused and the properties in Court. Another Excise Inspector conducted investigation, and submitted final report in the Court of the learned Judicial First Class Magistrate-I, Kasaragod under Section 55(a) of the Act. After complying with the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc)-III, Kasaragod for trial and disposal.
3. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Section 58 of the Act. The prosecution examined five witnesses, and proved Exts.P1 to P10 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence of total denial. Inspite of opportunities granted by the trial court, the accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty, and convicted him under Section 55(a) of the Act. On conviction, he was sentenced to undergo simple Crl.Appeal No.898 of 2012 3 imprisonment for one year, and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) by judgment dated 03.07.2012. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant is entitled for acquittal on the legal ground that the conviction under Section 55(a) of the Act cannot be sustained, even assuming that the case stands proved on facts. The contention raised by the appellant is that on the allegation of possession of arrack, conviction is possible only under Section 8(2) of the Act, and not under Section 55(a) or under Section 58 of "the Act".
5. Let me first examine the factual aspects, and see whether the case stands proved on facts. PW1 is the Excise Circle Inspector who detected the offence, PW4 is the Excise Inspector who registered the Ext.P5 crime and occurrence report, and PW5 is the Excise Inspector who conducted investigation and submitted final report. The defence has no dispute regarding the competence of these Crl.Appeal No.898 of 2012 4 Abkari Officials to discharge the various functions. The defence did not raise any illegality or infirmity in the process of detection, or the process of investigation, or as regards the final report submitted in this case. Excise Inspectors, and Excise Circle Inspectors are competent to discharge the various functions under the Kerala Abkari Act, as notified by the Government of Kerala under Section 4 of the Act.
6. PW2 is the preventive officer who had accompanied the Excise Circle Inspector, and PW3 is an independent witness who attested the Ext.P1 detection mahazar. Ofcourse, PW3 did not support the prosecution. But, PW2 has well corroborated the detecting officer on all material particulars. Much was not argued by the defence on the factual aspects as regards the process of detection. PW1 and PW2 have given definite and consistent evidence proving the arrest of the accused, and the seizure of 8 litres of arrack from his possession. The facts are further proved by the Ext.P1 detection mahazar which contains all the details of the detection process including the sampling Crl.Appeal No.898 of 2012 5 process. No illegality or infirmity was argued by the defence on any of these aspects. The defence is very much on the legal aspect, that the accused was wrongfully convicted under Section 55(a) of the Kerala Abkari Act. That the liquid contained in the can seized from the possession of the accused is arrack, is further proved by the Ext.P10 chemical analysis report. The sample collected by PW1 was produced in Court along with the remaining quantity of arrack without any delay in a properly packed and sealed condition. The specimen seal was also provided by the detecting officer. There is nothing to show that the sample or the other property was in any manner tampered with at any stage, anywhere by anybody. Till produced in Court, the property was in the safe custody of the Excise Inspector. I find nothing to disbelieve the evidence of PW1 and PW2, or to reject their evidence. Thus, I find that it stands well proved by the prosecution, that the accused was found possessing 8 litres of arrack on 12.12.2007 at Maniyampara.
7. Now let me see whether the legal issue raised by the defence is acceptable, and whether the Crl.Appeal No.898 of 2012 6 conviction is liable to be set aside on the said ground. Possession of arrack is now specifically punishable under Section 8(2) of the Act. Section 8(1) declares the policy of law that no person shall manufacture, process or sell or otherwise deal with arrack, and Section 8(2) contains the penal provision, with the punishment prescribed. Section 8(2) was introduced by an amendment to the Act. The contention raised by the defence is that when there is a specific provision to punish possession of arrack, the accused cannot be punished under Section 55(a), or under Section 58 of "the Act". Ofcourse, it is true that when there is a specific provision or a special law dealing with a subject, it cannot be dealt with under the general provision or the general law. The legal maxim,"Generalia specialibus non-derogant" is an accepted principle of statutory interpretation. In Kelukutty V.State of Kerala [2009(4) KLT 286], a learned Single Judge of this Court had occasion to consider the application of the different provisions under Sections 55(a), 58 and 8(2) of the Kerala Abkari Act. Ofcourse, Kelukutty's case is not a case of arrack. However, Crl.Appeal No.898 of 2012 7 as regards the application of Section 8(2) of the Act, this Court observed thus in Paragraph 6 of the judgment;
"In the case of arrack, ofcourse, now after the amendment of S.8 of the Act, a person manufacturing, importing, exporting, transiting without permit, possessing, storing, distributing, bottling or selling arrack in any form is liable to be punished under S.8(2) of the Act which is a special provision pertaining to arrack. Such a person may also fall under S.55(a) of the Act. But a general provision like S.55(a) of the Act will have to yield to a special provision like S.8 which deals exclusively with arrack which has been banned in this State with effect from 03.06.1997. Thus, after amending Act 10 of 1996, S.55 only deals with liquor and intoxicating drug other than arrack."
8. In Jose v. State of Kerala [2007(2) KLT 202], this Court held that conviction made by the trial court under Section 55(a) of the Act, in a case of possession of arrack, is only a curable irregularity under Section 464 Cr.P.C. In the said case involving 1700ml of Karnataka arrack, the prosecution submitted final report under Section 55(a) of the Act, and the Court also framed charge under Section 55(a) of "the Act". Finally on trial, the conviction was also made under Section 55(a) of "the Act". The said Crl.Appeal No.898 of 2012 8 conviction was challenged on the ground that a conviction is not legally possible under Section 55(a) of "the Act" in a case involving arrack. This Court held that just because the trial court committed an irregularity as regards the correct penal law for imposing punishment, the conviction cannot be set aside, when the defect is only a curable one.
9. In Gopan v.State of Kerala [2007(3)KLT 443], the conviction made by the trial court under Section 58 of the Act was altered by this Court to one under Section 8(2) of the Act. In the said case, the prosecution submitted final report under Section 58 of the Act on the allegation that the accused was found possessing 4 litres of arrack. The trial court framed a charge under Section 58 of "the Act", and conviction was also made under Section 58 of "the Act". There also the defence challenged the conviction and sentence on the ground that conviction in such a case is possible only under Section 8(2) of the Act. This Court found that mere error regarding the correct penal provision is not a ground to set aside the conviction as such, and so this Court converted the conviction to one under Crl.Appeal No.898 of 2012 9 Section 8(2) of the Act.
10. When an accused is called upon to answer a charge containing definite allegations constituting certain offence punishable under any law, it is quite immaterial that the section of penal law is wrongly stated in the charge by the trial court. The consideration in the matter of charge must be whether the necessary facts constituting the offence punishable under the correct provision of law are contained in the charge framed by the Court on the basis of the final report and other materials produced by the prosecution. In this case, the charge framed by the Court contains the definite materials constituting the offence punishable under Section 8(2) of the Act. Thus the accused was called upon to answer a charge on the allegation that he was found possessing arrack. Such a charge must necessarily come under Section 8(2) of the Act. Just because, the trial court wrongly stated the section of law in the charge, or just because the trial court convicted the accused under a wrong section inspite of the clear evidence proving the definite offence punishable under the penal law Crl.Appeal No.898 of 2012 10 applicable to the facts, the conviction cannot be set aside. In Jose's case, this Court held that it would be only a curable irregularity under Section 464 Cr.P.C. As regards the applicability of Section 8(2) of "the Act", or as regards the non applicability of the other Sections like 55(a) or 58 of the Act, I am fully in agreement with the observations made by the learned Single Judge in Kelukutty's case. In view of the general principles of interpretation, I find that in any case involving possession, or transit, or transport, or manufacture, or sale of arrack the correct penal section must be Section 8(2) of the Act, and not Section 58, or Section 55(a). When there is a specific penal provision to deal with a given subject, a prosecution can be brought, and a conviction can be made only under said section.
11. In exercise of the powers under Section 386
(b) Cr.P.C., necessary alterations or conversions can be made by the appellate court, as regards conviction or sentence, or even the nature of sentence. Appellate courts cannot go powerless, when some irregularities are committed by the trial courts. Section 386 Cr.P.C. provides Crl.Appeal No.898 of 2012 11 certain powers to appellate courts, including the power to alter or convert the conviction or sentence. A conviction in a case involving arrack made by the trial court under Section 58 or Section 55(a) of the Act cannot be simply set aside by the appellate court for the reason that the correct section of law applicable is Section 8(2) of the Kerala Abkari Act. So also, conviction in a case involving spirit, or Indian Made Foreign Liquor, or any other liquor other than arrack made by the trial court under a wrong section of law, or under Section 8(2) of the Act cannot be simply set aside by the appellate court, when the charge framed by the Court contains the definite allegations constituting the specific offence punishable under a particular law. However, the trial courts are directed that charge shall not be framed mechanically, without application of mind, or by simply accepting or endorsing the police charge. In this case, I find that the conviction under Section 55(a) of the Act cannot be set aside just for the reason that it should have been made under Section 8(2) of the Act. I find that this Court, as the Court of appeal, can very well convert the conviction to one Crl.Appeal No.898 of 2012 12 under Section 8(2) of the Act. The sentence imposed by the court below is simple imprisonment for one year, and a fine of Rs.1,00,000/- (Rupees One lakh only). The amount of fine is the minimum possible under the law. As regards the jail sentence, I find no reason for interference.
In the result, this appeal is dismissed, confirming the conviction against the appellant, on the finding that he was found possessing 8 litres of arrack on 12.12.2007. However, the conviction made by the court below will stand altered to one under Section 8(2) of the Act. The sentence also will stand confirmed, under Section 8(2) of the Act. The appellant will get the benefit of set off as already ordered by the trial court.
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