Kerala High Court
Chandran vs State Of Kerala on 28 September, 2012
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934
Crl.Rev.Pet.No. 196 of 2003 ( )
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CRA.128/2000 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR
CC.522/1998 of J.M.F.C.,KUNNAMKULAM
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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CHANDRAN, COLLIE WORKER,
S/O. VELLANGIL AYYAPPAN, KANIPPAYUR DESOM
KANIPPAYUR VILLAGE, THALAPPILLY TALUK.
BY ADV. SRI.K.P.DANDAPANI (SR.)
COMPLAINANT(S)/RESPONDENT/COMPLAINANT::
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. JASMINE V.H.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
28-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ds
N.K. BALAKRISHNAN, J.
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Crl. R.P. No: 196 of 2003
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Dated this the 28th day of September, 2012
O R D E R
Petitioner was concurrently held guilty of the offence punishable under section 55(g) of Abkari Act. He was sentenced by the learned Magistrate to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for three months. The appeal preferred by the petitioner was dismissed. This revision is directed against the said conviction and sentence.
2. Learned counsel for the petitioner submits that except marking Ext.P1 mahazar and Ext.P2 occurrence report, no other relevant document was marked before the learned Magistrate. Even the report of the Chemical Examiner was not marked before the trial court. No evidence was given by PW1 or PW2 regarding the delay in Crl.R.P. No: 196/2003 -2- production of the contraband articles before the court. Even the property list was not marked before the court below. It is further submitted that no document has been produced to show when the application (Forwarding Note) for forwarding the sample for chemical examination was submitted by the Excise Inspector before the learned Magistrate and when it was forwarded to the Chemical Examiner. Before the Appellate Court, an application was filed by the Public Prosecutor as Cr.M.P. No: 1757/2002 to receive the copy of the forwarding note and the report of the Chemical Examiner. It was observed by the learned Additional Sessions Judge that as per Ext.P3 (copy of the forwarding note) 750 ml of bottle containing 500 ml of wash was sent for chemical examination and as per Ext.P4, report of the chemical examiner, the bottle containing 500 ml of wash reached the laboratory on 18.03.1998 and that the sample Crl.R.P. No: 196/2003 -3- was certified to contain 10.21% by volume of ethyl alcohol. Learned counsel submits that Exts. P3 and P4 are the material documents relied upon by the prosecution at the appellate stage. Since those documents were not marked before the trial court, serious prejudice was caused to the petitioner since the accused would have had the liberty to put the contents of those documents to the prosecution witnesses to bring out contradictions/irreconcilability as to the contents of those documents. It is incomprehensible why the prosecution was conducted before the trial court in a casual manner without marking all the relevant documents through the witnesses. There was a duty cast on the prosecution to prove that the liquid allegedly seized from the possession of the accused was 'wash' kept for the purpose of manufacturing liquor. No evidence on that point was adduced by the prosecution, it is argued. Crl.R.P. No: 196/2003 -4-
3. Sri. Mathew Kuriakose, the learned counsel appearing for the petitioner, relies upon the decision in Santhosh v. State of Kerala 2007 (2) KLT 27 in support of his submission that possession simpliciter of articles which can be used for the purpose of manufacturing liquor cannot, in the absence of cogent and probative indications, be assumed to be possession for manufacturing liquor. The facts dealt with in Santhosh's case are distinguishable on facts. There, the accused was found transporting jaggery and kareenja patta in an autorickshaw when he was intercepted by the police. Jaggery can be used for other purposes; for preparing food items etc; karrenja patta also can be used for some other purpose. Those two properties were not seen in a mixed up condition. It was not actually 'wash' that was seized from the possession of the accused. It was in that context this court held that mere possession Crl.R.P. No: 196/2003 -5- of such materials, jaggery and kareenja patta by simpliciter will not be sufficient to sustain the charge under section 55(g) of Abkari Act.
4. The facts in the present case are entirely different. Here, the allegation is that the accused was carrying two cans/vessels containing 'wash'. Even though, I may not agree with the way in which the forwarding note and the report of the chemical examination were marked, to consider the question presently posed by the learned counsel it is necessary to refer to the Chemical Examiner's report, which shows that the percentage of ethyl alcohol found in that liquid, allegedly wash, was 10.21%. It was in liquid form. Jaggery and other articles besides water might have been used to prepare 'wash'.
Crl.R.P. No: 196/2003 -6-
5. In State of Kerala v. Choyunni 1980 KLT 107 it was held by this Court:
"What was recovered and found in the possession of the accused was a material which was used for the purpose of manufacturing liquor other than toddy and the same clearly comes within the ambit of section 55(g) of the Act."
Relying on the said decision the learned Public Prosecutor submits that in this case also what was recovered from the possession of the accused was 'wash', which is a material used for the purpose of manufacturing liquor and as such section 55(g) of the Act is certainly attracted.
6. In this connection the learned Public Prosecutor relies upon the decision in Kittunny v. State of Kerala 1981 KLT SN 69 Case No:124, where it was held:
Crl.R.P. No: 196/2003 -7- "Section 3(10) of the Act defined 'Liquor' as including spirits of wine, methylated spirits, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. The sample seized in this case is shown to contain ethyl alcohol.
Section 55(g) renders punishable any unauthorised user, keeping or being in possession of "any materials, still, utensil, implement whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug". The argument is that the expression 'still, utensil, implement, or apparatus' lend colour and meaning to the expression 'material' and that S.55(g) takes in only materials which are analogous to still, utensil, implement etc. The word 'material' does not follow the other expressions, but precedes them. It cannot be said that it takes Crl.R.P. No: 196/2003 -8- colour and meaning from the subsequent expressions "Material" only means "matter". Wash which is a liquid containing small percentage of alcohol is "matter" or "material". Viewed in this light, keeping or being in possession of wash for distillation will come under section 55(g) of the Act."
(underlined by me to lay emphasis)
7. It was held in Paravan v. State of Kerala 2007 (1) KLT 396 thus:
"Going by the definition of 'wash' in R.2
(g) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, 'wash' means a sacharine solution frm which spirit is obtained by distillation and it also includes fresh wash or wort."
It was further held:
"Thus, wash is a sugar solution which, after fermentation, can be converted Crl.R.P. No: 196/2003 -9- into spirit or arrack through distillation. Even otherwise, going by the ordinary connotation of the expression "wash", also, it is fermented liquor ready for the distillery. Thus, "wash" is the raw- material for preparation of arrack which is a potable liquor containing alcohol."
Hence in the light of the decisions cited supra, I find no hesitation to hold that 'wash' allegedly seized in this case, is a material used for the manufacture of liquor.
8. It is further submitted by the learned counsel for the revision petitioner that the property list produced in Court would show that even that property list was prepared by the Excise Inspector only on 25.04.1997. The case was detected on 07.01.1997. It was as per this property list prepared on 25.04.1997, the two plastic vessel allegedly containing 'wash' and one sample bottle were sent to the Crl.R.P. No: 196/2003 -10- Court. It is seen that those properties were received in Court only on 19.05.1997. That is; even after the preparation of the property list, it took nearly one month to produce the properties before court. Not only that this document was not marked before the court below. The prosecution did not offer any explanation for not producing the properties including the sample bottle before court without delay. It was also not stated by the prosecution as to who was in custody of those articles till the day on which those properties were produced in Court and who actually produced the same in Court. Therefore, the chance of tampering with the sample and the residue seized cannot be ruled out. Even though it may be correct that it would suffice if the seizure of the property is reported, it does not absolve the prosecution of its duty to explain the delay in production of the properties, especially when there was Crl.R.P. No: 196/2003 -11- unreasonable delay in producing the same. Not only that, the article seized in this case is 'wash' and not illicit liquor.
9. The learned counsel submits that even by lapse of time, because of the water content and the saccharine in it, there would be natural fermentation and so that also may be one of the reasons for the sample to contain 10.21 % by volume of Ethyl Alcohol. The argument is that the articles, at the time of seizure, cannot thus be held to be 'wash'. It could have become 'wash' due to lapse of time. Even if that part of the argument is not accepted, still the prosecution cannot rest content by not producing the property list and by not explaining the reason for delay in production of the property.
10. There is one more aspect which also may be relevant. Item No:2 of the property list shows that the Crl.R.P. No: 196/2003 -12- sample was of 750 ml. In the seizure mahazar it was stated that the sample taken was of 500ml in a bottle of 750 ml. The property list dated 25.04.1997, which reached the Court on 19.05.1997, does not state that the sample was about 500 ml in a bottle of 750 ml. Ext.P3, the copy of the forwarding note, shows that there are two material corrections, as against column numbers 1 and 4, with regard to the quantity of the sample. That was to be explained by the prosecution. But it was not done. Benefit of that reasonable doubt must go to the accused.
11. Considering the unreasonable and unexplained delay in production of the property, I find that serious prejudice was caused to the petitioner and as such I find that the petitioner is entitled to get the benefit of reasonable doubt.
Crl.R.P. No: 196/2003 -13- In the result this Criminal Revision Petition is allowed. The conviction and sentence passed against the petitioner are set aside. The petitioner is set at liberty. The bail bond executed by the petitioner will stand cancelled. The fine amount, if any, remitted shall be refunded to the petitioner.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj