Kerala High Court
R.Rajesh vs State - Represented By on 3 July, 2020
Equivalent citations: AIRONLINE 2020 KER 1106
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942
CRL.A.No.791 OF 2011
AGAINST THE ORDER OF CONVICTION AND SENTENCE PASSED IN SC
501/2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I),
KASARAGOD
APPELLANT/ACCUSED:
R.RAJESH
S/O RAGHAVA, PALLAM HOUSE, KUNJATHUR,
KUNJATHUR VILLAGE, KASARAGOD DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.JOHNY THOMAS
RESPONDENT/COMPLAINANT:
STATE - REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17-06-2020, THE COURT ON 03-07-2020 DELIVERED THE FOLLOWING:
Crl.A.No.791/2011
2
R.NARAYANA PISHARADI, J
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Crl.A.No.791 of 2011
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Dated this the 3rd day of July, 2020
JUDGMENT
The appellant is the accused in the case S.C.No.501/2008 on the file of the Court of the Additional Sessions Judge, Kasaragod.
2. The prosecution case is that, on 26.12.2002, at about 06:45 hours, at the sales tax excise check post at Manjeshwaram, the Excise Inspector (CW1) who was on duty there, intercepted the petitioner who came on a scooter and he found that 24 bottles (750 ml. capacity) of Indian Made Foreign Liquor (for short 'IMFL') were kept inside the scooter without any authority. The liquor was of the kind of 'Original Choice Deluxe Crl.A.No.791/2011 3 Whisky'. The liquor bottles had the label "For sale in Karnataka only". The Excise Inspector arrested the appellant and took samples of the liquor and seized the articles as per Ext.P5 mahazar.
3. CW1 Excise Inspector produced the accused and the articles and the records before the Preventive Officer (PW4) who was in charge of the Excise Inspector of Kumbala Excise Range. PW4 registered Ext.P7 crime and occurrence report. He produced the accused and the material objects and the records before the court. After completing the investigation, PW6 Excise Circle Inspector, Kasaragod filed final report against the accused for the offence punishable under Section 55(a) of the Act.
4. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Act. The accused pleaded not guilty to the offence and he claimed to be tried.
5. The prosecution examined PW1 to PW6 and marked Exts.P1 to P12 documents and MO1 series and MO2 material objects. No evidence was adduced by the appellant/accused. Crl.A.No.791/2011 4
6. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year.
7. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal.
8. Heard learned counsel for the appellant and also the learned Public Prosecutor. Perused the records.
9. Learned counsel for the appellant contended that the evidence adduced by the prosecution is not reliable and sufficient to prove that the appellant was found in possession of IMFL. Learned counsel for the appellant also contended that there was undue delay in conducting the investigation of the case and it has caused prejudice to the appellant and on that ground, he is entitled to be acquitted. It is also contended that non- examination of the detecting officer has also caused prejudice to Crl.A.No.791/2011 5 the appellant.
10. The Excise Inspector (CW1) who detected the offence was no more at the time of the trial of the case. The documents prepared by him were proved through PW1 Assistant Excise Inspector who was in the excise party led by CW1.
11. PW1 has given evidence regarding the occurrence in detail. PW2 is a Preventive Officer who was on duty in the excise check post. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence.
12. The independent witness, who was examined as PW3 by the prosecution, did not support the prosecution case. He denied having seen the incident. But, he admitted his signature in Ext.P5 seizure mahazar.
13. Ext.P12 is the chemical examination report received in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 40.87% by volume of ethyl alcohol.
14.The occurrence was on 26.12.2002. The Excise Inspector who detected the offence had seized the liquor bottles and took Crl.A.No.791/2011 6 sample of liquid from one bottle and sealed the sample bottle and affixed label, bearing the signature of himself and also the witnesses and the accused, on the sample bottle. He had put the other bottles of liquor in a plastic sack and tied it and sealed it and affixed label on it. These facts are spoken to by PW1 and PW2 and their evidence is corroborated by the recitals in Ext.P5 mahazar.
15. Ext.P7 is the crime and occurrence report prepared by PW4 Preventive Inspector who was in charge of the Excise Inspector of Kumbala Excise Range. The description of the properties given in Ext.P7 report shows that there was seal and label on the sample bottle when it was produced by CW1 before PW4. Ext.P8 property list shows that PW4 had produced the sample and the remaining bottles of liquor before the court on the date of occurrence itself. The description of the properties given in Ext.P8 property list also shows that the bottle containing the sample was sealed and labelled at the time of its production before the court.
Crl.A.No.791/20117
16. PW4 had submitted Ext.P9 forwarding note before the court on the date of the occurrence itself for sending the sample for chemical examination. The description of the sample given in Ext.P9 forwarding note also shows that the sample bottle was sealed and labelled. The copy of the forwarding note shows that specimen of the seal used for sealing the sample bottle had been affixed on that document.
17. In the above circumstances, the link evidence is complete and there is assurance that the very same sample drawn by the Excise Inspector from the liquor seized at the spot of the occurrence was produced before the court and sent for chemical analysis and that Ext.P12 chemical analysis report relates to that sample.
18. Non-examination of the Excise Inspector who detected the offence has not in any way caused prejudice to the accused. The evidence of PW1 and PW2 is sufficient to prove the occurrence.
19. Seizure of the liquor bottles and taking of sample and compliance with the other formalities are proved by the evidence of PW1 and PW2. Nothing has been brought out in the cross- Crl.A.No.791/2011 8 examination of these two witnesses to create any doubt with regard to the veracity of the prosecution case regarding seizure of liquor from the scooter which was driven by the accused. The seizure of the bottles of liquor from the possession of the accused stands proved by the prosecution.
20. Of course, there was delay in conducting the investigation of the case. Investigation of the case was conducted and statements of the witnesses were recorded by the investigating officer more than five years after the occurrence. Learned counsel for the appellant has not explained what is the prejudice caused to the accused on account of delay in conduting the investigation. In these types of cases, material part of the collection of evidence would be over by seizure of the contraband from the possession of the accused in compliance with the necessary formalities. In the absence of any prejudice caused to the accused, delay in conducting the investigation, by itself is not a sufficient ground for acquittal of the accused (See Santhosh v. State of Kerala : 2017 (5) KHC 107). The delay occurred in recording the statements of the witnesses and the preparation of Crl.A.No.791/2011 9 the scene mahazar has not caused any prejudice to the appellant/accused.
21. The question now arises what is the offence committed by the accused. Did he commit an offence punishable under Section 55(a) of the Act or only an offence punishable under Section 13 read with 63 of the Act?
22. Section 55(a) of the Act states that, whoever in contravention of the Act or of any rule or order made under the Act, imports, exports, transports, transits or possesses liquor or any intoxicating drug, shall be punished.
23. In the instant case, the prosecution case is that the accused imported IMFL from the State of Karnataka.
24. Section 6 of the Act provides that, no liquor or intoxicating drug shall be imported except with the permission of the Government and unless the duties, taxes, fees etc. due to the Government have been paid. As per Section 3(16) of the Act, 'import' means to bring into the State.
25. Rule 9 of the Foreign Liquor Rules (hereinafter referred to as 'the Rules') states that, no foreign liquor shall be imported Crl.A.No.791/2011 10 into the State except under a permit issued in that regard.
26. Rule 11A of the Rules states that, no quantity of foreign liquor exceeding the quantity notified by the Government under Sections 10 and 13 of the Act shall be possessed or stored by any person within the State unless the same is covered by a permit issued by an officer to do so.
27. Section 13 of the Act states that, no person, not being a licensed manufacturer or vendor of liquor or intoxicating drugs, shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as prescribed under the notification issued by the Government. Section 13A of the Act provides that, the Government may, by notification, prohibit the possession by any person or class of persons, either throughout the whole State or in any local area, of any liquor or intoxicating drug either absolutely or subject to such conditions as the Government may prescribe.
28. As per the notification issued by the Government as SRO No.127/99 dated 05.02.1999, as on the date of the occurrence, the maximum quantity of IMFL which a person could Crl.A.No.791/2011 11 possess without any permit, was only 1.500 litres.
29. Section 63 of the Act provides that, whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act, or of any rule or order made under the Act, and not otherwise provided for in the Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both.
30. In the instant case, the total quantity of IMFL found in the possession of the appellant was eighteen litres. There is evidence to show that the bottles of liquor seized from the possession of the appellant had the label "For sale in Karnataka only". But, it does not mean that the appellant himself had brought the liquor from Karnataka into Kerala. There is no satisfactory evidence to find that the appellant had imported IMFL.
31. The question is whether mere possession of liquor manufactured outside the State would amount to proof of import. Crl.A.No.791/2011 12 This question was considered in Narayanan Nair v. State of Kerala : 2011 (3) KHC 472 : 2011 (3) KLT 722. It has been held therein that, in order to prove the offence under Section 55(a) read with Rule 9, the prosecution must prove that accused was in possession of IMFL and that the accused had 'brought' IMFL into the State of Kerala from some place which lies outside the State. It was further held that the act of 'bringing' is different from being in 'possession'. A person found to be in possession may not be the one who has brought the liquor into the State and therefore, only for the reason that a person is found to be in possession of the liquor, it cannot be concluded that he himself had brought the article into the State.
32. In Tippu Mohammed v. State of Kerala : 2015 (1) KLD 59, it was held that in the absence of any evidence to find that the liquor allegedly possessed by the appellant was imported in violation of the provisions of the Act, merely for the reason that there is a writing in the mahazar or that the labels on the bottles contained a description 'for sale in Karnataka', it cannot be found that the prosecution has discharged its burden of Crl.A.No.791/2011 13 proving that the accused had imported foreign liquor.
33. A Division Bench of this Court, in Surendran v. Excise Inspector : 2004 (1) KLT 404, clarified the position of law that, in order to attract the offence under Section 55(a) of the Act, the possession of liquor must be in the course of import, export, transport or transit.
34. The question, what exactly is the offence punishable under Section 55 of the Act, was considered by another Division Bench in Mohanan v. State of Kerala : 2007 (1) KHC 752 :
2007 (1) KLT 845. The Division Bench re-iterated that Section 55(a) of the Act is applicable only when persons illegally import or transport liquor or when they are in possession of liquor while illegally importing. It was held that sub-clause (a) of Section 55 deals with illegal imports and exports of liquor or intoxicating drugs or transport or possession of such liquor covered under import or export.
35. In the instant case, the accused was found in possession of 18.000 litres of IMFL. However, there is no evidence to find that the accused himself had purchased the Crl.A.No.791/2011 14 liquor from Karnataka and brought it from there. In such circumstances, it can only be found that the accused has committed only an offence punishable under Section 63 of the Act for possessing IMFL in excess of the quantity prescribed.
36. The aforesaid view finds support from the decisions of this Court in Sabu v. State of Kerala : 2003 (2) KLT 173, Sabu v. State of Kerala : 2007 (3) KHC 753 : 2007 (4) KLT 169, Mohanan v. State of Kerala : 2007 (3) KHC 718 : 2007 (4) KLT 408, Purushothaman v. State of Kerala :2007 (3) KHC 541, Raman v. State of Kerala : 2007 (3) KHC 981 : 2007 (4) KLT 223, Abdulla v. Station House Officer : 2007 (4) KHC 907, Nobbey v. State of Kerala : 2011 (1) KLD 11, Ammed v. State of Kerala : 2013 (1) KHC 199 : 2013 (1) KLT 146 and Sobichan @Joseph v. State of Kerala : 2013 KHC 3358.
37. In the above circumstances, conviction entered against the appellant by the trial court under Section 55(a) of the Abkari Act has to be modified as conviction under Section 63 of the Abkari Act. Considering the quantity of liquor involved and the other facts and circumstances of the case including the fact that Crl.A.No.791/2011 15 more than 17 years have lapsed after the commission of the offence, I am of the view that a sentence of fine of Rs.5,000/-, which is the maximum that can be imposed, would meet the ends of justice.
38. Consequently, the appeal is allowed in part. The conviction and sentence recorded against the appellant/accused by the trial court under Section 55(a) of the Abkari Act are set aside. The appellant/accused is convicted for the offence punishable under Section 63 of the Abkari Act and he is sentenced to pay fine of Rs.5,000/- (Rupees five thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of one month.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge