Kerala High Court
Rakkappan. 73 Years vs Excise Inspector on 16 June, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942
Crl.Rev.Pet.No.1566 OF 2013
AGAINST THE JUDGMENT IN CRA 481/2011 DATED 30-01-2013 OF COURT
OF SESSION, PALAKKAD DIVISION WHICH AROSE FROM THE JUDGMENT IN
SC 197/2008 DATED 31-08-2011 OF COURT OF SESSION, PALAKKAD
DIVISION
REVISION PETITIONER/APPELLANT/ACCUSED:
RAKKAPPAN. 73 YEARS,
S/O.VELAPPAN, CHEMMAMKADU, KOTTEKKAD, MALAMPUZHA
VILLAGE, PALAKKAD
BY ADVS.
SRI.K.LAKSHMINARAYANAN
SMT.SATHYASHREE PRIYA ESWARAN
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 EXCISE INSPECTOR
PALAKKAD RANGE-687001
2 STATE OF KERALA
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM
SRI.SANTHOSH PETER SR.PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11.06.2020, THE COURT ON 16.06.2020 PASSED THE FOLLOWING:
Crl.R.P.No.1566/2013
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R.NARAYANA PISHARADI, J
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Crl.R.P.No.1566 of 2013
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Dated this the 16th day of June, 2020
ORDER
The revision petitioner is the accused in the case S.C No. 197/2008 on the file of the Court of the Assistant Sessions Judge, Palakkad.
2. Concurrent verdicts of guilty and conviction recorded against the petitioner by the courts below under Section 55(a) of the Abkari Act, 1077 (hereinafter referred to as 'the Act') are assailed in this revision petition.
3. The prosecution case, in short, is that on 30.09.2007, at about 10:20 hours, the Preventive Officer (PW1) of the Palakkad Excise Range and the excise party with him, found the petitioner at the road near the petrol bunk at the place Manali in Palakkad with a bag containing five bottles of Indian Made Crl.R.P.No.1566/2013 3 Foreign Liquor (for short 'IMFL'), each bottle having the capacity of 1.500 litres. The liquor was of the kind 'Imperial Express XXX Rum'. PW1 arrested the accused and seized the bottles of liquor and the bag, took samples from the liquor and seized the articles as per Ext.P2 mahazar.
4. PW1 produced the articles and the accused and the records before PW4 Excise Inspector. PW4 registered Ext.P3 crime and occurrence report. He produced the accused and the material objects and the records before the court on the date of occurrence itself. After completing the investigation, he filed the final report against the accused for the offence punishable under Section 55(a) of the Act.
5. 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.
6. The prosecution examined PW1 to PW4 and marked Exts.P1 to P6 documents and MO1 and MO2 series material objects. No evidence was adduced by the petitioner/accused. Crl.R.P.No.1566/2013 4
7. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.
8. The petitioner filed Crl.A.No.481/2011 before the Court of Session, Palakkad challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence made against the petitioner and dismissed the appeal. The accused has now come up in revision.
9. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records.
10. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is not reliable and sufficient to prove that the petitioner was found in possession of IMFL. Learned counsel for the petitioner also contended that, even if the prosecution has proved that the petitioner was found carrying Crl.R.P.No.1566/2013 5 7.500 litres of IMFL, which was in excess of the prescribed quantity, he cannot be convicted for an offence punishable under Section 55(a) of the Act but he can be convicted only for an offence punishable under Section 13 read with 63 of the Act.
11. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the excise guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. The independent witness, who was examined as PW3 by the prosecution, has also supported the prosecution case. He has given evidence that he saw the excise officers seizing liquor from the possession of the accused. He also identified his signature in Ext.P2 seizure mahazar.
12. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of IMFL from the possession of the accused. There is no whisper of an allegation that PW1 had any motive to falsely implicate the petitioner/accused in such a case. Crl.R.P.No.1566/2013 6 There is nothing to show that the excise officers have foisted a false case on the petitioner with a view to settle any personal score with him. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of IMFL from the possession of the petitioner.
13. The alleged occurrence was on 30.09.2007. Ext.P2 seizure mahazar shows that PW1 had seized the liquor bottles and took samples from the liquid in them and sealed them at the spot of the occurrence. The specimen of the seal used is seen affixed on Ext.P2 mahazar. There is also a specific recital in Ext.P2 mahazar that PW1 affixed label bearing the signature of himself and the witnesses and the accused on the sample bottles and the remaining bottles of liquor.
14. Ext.P3 is the crime and occurrence report prepared by PW4 Excise Inspector. The description of the properties given in Ext.P3 report shows that the bottles of liquor and the sample bottles produced before him by PW1 were sealed and that there was label on them. Ext.P4 property list shows that PW4 had produced the samples and the remaining bottles of liquor before Crl.R.P.No.1566/2013 7 the Magistrate on the date of occurrence itself. The description of the properties given in Ext.P4 property list also shows that they were sealed and there was label on them.
15. PW4 had submitted Ext.P5 forwarding note before the court, on the date of occurrence itself, for sending the samples for chemical examination. The description of the samples given in Ext.P5 shows that the sample bottles were sealed and labelled. Ext.P5 forwarding note also bears the specimen of the seal which was affixed on the sample bottles.
16. Ext.P6 is the chemical examination certificate received in respect of the samples of liquid which were sent for analysis. It shows that the samples had the smell of foreign liquor and that they contained ethyl alcohol. It is also stated in Ext.P6 certificate that the seals on the sample bottles were intact and they tallied with the sample seal provided.
17. In the above circumstances, the link evidence is complete and there is assurance that the very same samples which were drawn by PW1 from the bottles of liquor at the spot of the occurrence were produced before the court and sent for Crl.R.P.No.1566/2013 8 analysis and that Ext.P6 chemical examination certificate relates to those samples.
18. The courts below have properly analysed the evidence and come to the right conclusion that the petitioner was found having in possession of 7.500 litres of IMFL. There is no sufficient ground to interfere with the concurrent findings of the courts below in this regard.
19. 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?
20. 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.
21. In the instant case, the prosecution has no case that the accused imported, exported or transited liquor. The prosecution case is that the accused possessed and transported liquor. The prosecution has, no doubt, established the fact that Crl.R.P.No.1566/2013 9 the accused possessed IMFL.
22. Section 10 of the Act provides that, no liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provisions of Section 11 of the Act. As per Section 3(18) of the Act, 'transport' means to move from one place to another within the State.
23. Rule 11 of the Foreign Liquor Rules, 1953 (hereinafter referred to as 'the Rules') states that, no quantity of foreign liquor in excess of the quantity notified by the Government under Sections 10 and 13 of the Act shall be transported from one place to another within the State unless the same is covered by a transport permit issued by the Excise Inspector in charge of the Range of origin. 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.
Crl.R.P.No.1566/201310
24. 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.
25. As per the notification issued by the Government as SRO No. 725/2003 dated 02.08.2003, as on the date of the occurrence, the maximum quantity of IMFL which a person can possess without any permit, was three litres.
26. 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 Crl.R.P.No.1566/2013 11 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.
27. 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.
28. 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.Crl.R.P.No.1566/2013
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29. In the instant case, the accused was found in possession of 7.500 litres of IMFL while he was transporting it. However, the liquor was not illicit liquor. He was not illegally transporting IMFL. The evidence of PW1 and the recitals in Ext.P2 mahazar show that there was hologram of the Kerala State Beverages Corporation on the liquor bottles seized from the possession of the accused. Of course, the accused could not produce any bill for purchase of the liquor from the Kerala State Beverages Corporation. But, the very fact that the bottles of liquor had hologram of the Kerala State Beverages Corporation would show that they had been sold from an outlet of the Corporation. The prosecution has no case that the hologram found on the liquor bottles was fake. The evidence of PW1 also shows that there was an outlet of the Kerala State Beverages Corporation at a distance of 100 metres from the scene of the occurrence. In these circumstances, it can only be found that the accused has committed only an offence punishable under Section 63 of the Act for transporting and possessing IMFL in excess of the quantity prescribed.
Crl.R.P.No.1566/201313
30. 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.
31. In the above circumstances, conviction entered against the petitioner by the courts below 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, I am of the view that a sentence of fine of Rs.5,000/-, which is the maximum that can be imposed, will meet the ends of justice.
32. Consequently, the revision petition is allowed in part. The conviction and sentence recorded against the Crl.R.P.No.1566/2013 14 petitioner/accused by the courts below under Section 55(a) of the Abkari Act are set aside. The petitioner/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 lsn/jsr True Copy PS to Judge