Kerala High Court
Godwin Glancy vs The State Of Kerala on 6 September, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
CRL.MC NO. 6023 OF 2024
CRIME NO.407/2020 OF Palarivattom Police Station, Ernakulam
AGAINST SC NO.519 OF 2022 OF ASSISTANT SESSIONS COURT,
ERNAKULAM
PETITIONER/ACCUSED:
GODWIN GLANCY
AGED 29 YEARS, S/O. GLANCY,
VALIYAPARAMBIL,
MAMPRA ROAD,CHALIKKAVATTOM,
POONITHURA, PALARIVATTOM,
ERNAKULAM, PIN - 682001
BY ADVS.
SRI.P.C.THOMAS
SRI.ROJO JOSEPH
SRI.A.SAIN PAUL
SRI.P.R.SHIBU
SMT.NAVIA SEBASTIAN
ADV.P.T.JUDY
RESPONDENTS/STATE AND COMPLAINANT:
1 THE STATE OF KERALA
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER
PALARIVATTOM POLICE STATION,
ERNAKULAM, PIN - 682025
BY SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR
SRI.ASHI M.C., PUBLIC PROSECUTOR
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON 06.09.2024 PASSED THE FOLLOWING:
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BECHU KURIAN THOMAS, J.
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Crl.M.C No.6023 of 2024
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Dated this the 6th day of September, 2024
ORDER
This petition under section 482 of the Code of Criminal Procedure, 1973 challenges the proceedings in S.C. No.519/2022 on the files of the Assistant Sessions Court, Ernakulam arising out of Crime No.407/2020 of Palarivattom Police Station. Petitioner is the first accused in the said case and is facing an indictment, along with two other accused, for the offences under sections 13, 55(a) and 55(i) of the Abkari Act, 1077 apart from section 118(e) of the Kerala Police Act, 2011 and section 4(2)(e)(j) read with section 5 of the Kerala Epidemic Diseases Ordinance, 2020 (for short 'KEDO').
2. Prosecution alleges that on 15.05.2020 the three accused were found in possession of 18.600 litres of liquor in 25 bottles of which one did not contain the seal of the Government of Kerala. The bottles were found in the trunk of a vehicle bearing registration No.KL- 07-CF-3055, parked in the parking lot of a private business concern, near the Ernakulam Bypass. It is also alleged that as the accused were standing outside the vehicle without wearing the facemask and without maintaining social distancing during the Covid pandemic, they were arrested and the bottles were seized.
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3. Sri. P.C.Thomas, the learned counsel for the petitioner raised the following contentions (i) the officer who filed the final report was not the authorised officer under law and therefore the prosecution is a non-est, (ii) the entire liquor allegedly seized was purchased from the Kerala Beverages Corporation and hence, there is no illicit liquor falling under section 55(a) or 55(i) of the Abkari Act and therefore at the most, only section 13 of the Abkari Act would be attracted, (iii) the uncontroverted allegations in the final report does not make out any offence as alleged, since there are no materials to connect the petitioner and the other accused with the possession of the liquor or with the car, (iv) the petitioner and the other accused were standing inside a private property, and hence the offensive provisions of KEDO cannot be attracted. On the basis of the above submissions, the learned counsel contended that the prosecution is an abuse of the process of law and is liable to be quashed.
4. Countering the arguments, Sri.M.C.Ashi as well as Sri.C.N.Prabhakaran, the learned Public Prosecutors submitted that (i) a Sub Inspector of Police is an Abkari Officer as per section 50 of the Abkari Act and is hence entitled to file the final report, (ii) in respect of 5 bottles, the seal was found to be incomplete and therefore the liquor found in the car were illicit liquor, atleast in respect of those bottles and also that it is a matter for trial, (iii) the question whether the seized vehicle and the liquor were in the possession of the accused are all matters to be decided after trial, especially since the mahazar indicates Crl.M.C No.6023/24 5 2024:KER:67649 that the accused were found initially to be sitting inside the car, and
(iv) applicability of the provisions of KEDO cannot be decided in this proceeding under the inherent powers of the Court.
5. The rival contentions are dealt with as below:
(i) Can a Sub Inspector of Police file the final report under the Abkari Act?
6. The final report in the case was filed by the Sub-Inspector of Police, Palarivattom Police Station. As per section 173 of Cr.P.C, a Station House Officer alone can file a final report. However, the Abkari Act is a special enactment. Section 50 of the Abkari Act, defines an Abkari Officer as including a Sub-Inspector of Police within his territorial jurisdiction. In the decision in Saji @ Kochumon v. State of Kerala (2010 (3) KHC 259) a learned Single Judge of this Court had, after referring to the provisions of Section 50 of the Abkari Act, held that a Sub Inspector of Police is an abkari officer and if it is within his territorial jurisdiction, he is competent to file the final report. The said proposition has been reiterated by another learned Single Judge of this Court in Moothedath Sivadasan and Another v. State of Kerala (2021 (1) KLT 744). The Abkari Act being a special enactment, the Abkari Officer is, as prescribed in the said Act, competent to conduct the investigation and file the final report. In view of the above proposition of law, the final report in the instant case filed by the Sub Inspector of Police, Palarivattom Police Station, cannot be said to be without authority or jurisdiction.
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(ii). Can the liquor found in the car be treated as illicit liquor?
7. Petitioner and the other accused have been charged with the offence under section 55(a) and section 55(i) of the Abkari Act. Both the above offences require illicit liquor to be possessed, transported or kept for sale. Nowhere in the final report does it indicate that the entire liquor allegedly possessed by the petitioner and the other accused was illicit liquor. On the other hand, it is seen from the final report that, of the 25 bottles allegedly found in the possession of the petitioner and other accused, 24 had the Government seal on them. Therefore, those 24 bottles cannot be said to be illicit liquor.
8. In this context, it is necessary to refer to the decision of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) wherein it was held that S.55(a) of the Abkari Act deals with only illegal import, export or transport, transit etc. on such import or export. It was made clear that S.55(a) is applicable only when persons illegally import or transport liquor or are in possession of liquor while illegally importing. Thus when possession is not of illicit liquor, section 55(a) cannot be attracted. This proposition was reiterated in Mohanan v. State of Kerala (2007 (1) KLT 845).
9. Of the 25 bottles seized from the car, 24 of them had the Government seal while one bottle of Johnnie Walker Blue Label did not allegedly bear the Government seal. The said liquor is admittedly a foreign liquor and is permitted to be imported into the country either through the duty-free shops in the Airport or through the Beverages Crl.M.C No.6023/24 7 2024:KER:67649 Corporation. As per section 13 of the Abkari Act, possession of excess quantity of liquor prescribed by the Government is prohibited. Thus, as far as 24 bottles are concerned, only the offence under section 13 of the Abkari Act can, at the most, be attracted, since they are not illicit liquor. But as far as the one bottle of Johnnie Walker Blue Label is concerned, it is a matter of evidence whether it is illicit liquor or not. Despite petitioner's contention that the said bottle also bears the seal of the Beverages Corporation, there is nothing on record to establish such contention and hence it falls within the realm of disputed facts. Therefore even if the entire allegations in the final report remain uncontroverted, still, the prosecution cannot be interfered on that count under section 482 Cr.P.C.
(iii). Can the uncontroverted allegations in the final report indicate that the accused were in possession of the seized liquor?
10. The final report alleges that the accused were found standing by the side of the car parked on a private property. There is not even a whisper that the car belonged to the petitioner or any of the accused. No material has been recovered to prove the ownership or possession of the car or to even connect the accused with the car. Merely by standing beside a car, a person cannot be said to be in possession of the liquor kept in the trunk of the car. In the absence of any material to connect the accused with the car, it cannot be stated that the accused was in possession of liquor kept inside the car. Though the seizure mahazer mentions that the petitioner and the other two accused were initially found sitting inside the car, in the final report there is no such allegation Crl.M.C No.6023/24 8 2024:KER:67649 that they were inside the car. In fact, the final report specifically alleges that the accused were standing by the side of the car.
11. Even if the mahazar is taken into reckoning, it is not a piece of substantive evidence to prove the offence. It can only be used to corroborate other substantive evidence. When the prosecution case, as revealed from the final report, only alleges that the accused were standing by the side of the car, the reference in the scene mahazar that the accused were sitting inside the car cannot be used as a material to connect the accused with the crime alleged. Thus the uncontroverted allegations in the final report do not make out that the accused were in possession of any liquor or that they were selling the liquor.
12. When the prosecution itself has not alleged that the accused was in possession of the seized liquor, the offence under section 55(i) of the Abkari Act also cannot be attracted as it cannot be stated that the accused had kept the liquor for sale. Merely because a person stood near a car parked in a private property, it cannot be assumed by any stretch of imagination that the car either belonged to the accused or that the liquor inside the car was kept by the accused for sale. There are no materials to connect the petitioner with the car or the property with the petitioner. In such circumstances, the allegation that the petitioner had kept the liquor for sale is without any legal basis. In the absence of any material to justify the allegation that the accused had either possessed or kept the liquor for sale, the offence under section 55(a) and section 55(i) of the Abkari Act cannot be attracted. Crl.M.C No.6023/24 9
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(iv). Has the accused committed the offence under section 118(e) of the Kerala Police Act?
13. Section 118(e) of the Kerala Police Act reads as follows:
"S.118. Penalty for causing grave violation of public order or danger.--Any person who,-- xxxx xxxxx
(e). knowingly does any act which causes danger to public or failure in public safety; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both."
14. Since the accused were admittedly standing on a private property, the offence under section 118(e) has no application at all.
(v). Are the offensive provisions of KEDO attracted in the instant case?
15. As regards section 4(2)(e)(j) read with section 5 of the KEDO is concerned, the prosecution allegation itself indicates that the petitioner and the other accused were found standing by the side of a car in a private property. There is no allegation that the petitioner was standing on public property without wearing a mask. There is no indication regarding the nature of the offence committed by the petitioner or the other accused. The final report does not refer to any particular prescriptions for social distancing or the other measures prescribed. The allegations are totally vague when viewed in the light of the fact that the accused were admittedly standing on private property. Apart from the above, the Government has already issued orders withdrawing all cases initiated under the KEDO. In such a view of the matter, prosecution of the petitioner for the offence under section 4(2) Crl.M.C No.6023/24 10 2024:KER:67649
(e)(j) read with section 5 of KEDO is also not attracted.
16. In view of the above circumstances, since the uncontroverted allegations in the final report do not make out the offences alleged, the prosecution of the petitioner is an abuse of the process of law. Hence the proceedings in S.C. No.519/2022 on the files of the Assistant Sessions Court, Ernakulam as against the petitioner is hereby quashed. The Crl.M.C is allowed.
Sd/-
BECHU KURIAN THOMAS JUDGE vps Crl.M.C No.6023/24 11 2024:KER:67649 APPENDIX OF CRL.MC 6023/2024 PETITIONER ANNEXURES Annexure -A1 COPY OF THE FINAL REPORT DATED 04-09-2020 ON THE FILE OF THE ASST SESSIONS COURT/3RD ADDL SUB COURT, ERNAKULAM, REGARDING THE OFFENCES PUNISHABLE UNDER SECTIONS 13, 55(a), AND 55(0) OF THE ABKARI ACT, U/S 118(e) OF THE KP ACT, AND SECTION 4(2)(e)G RW SECTION 5 OF THE KERALA EPIDEMIC DISEASES ORDINANCE 2020 Annexure -A2 TRUE COPY OF FIR NO. 0407/2020, DATED 15/05/2020, REGISTERED BY PALARIVATTOM POLICE STATION CONCERNING THE OFFENCE UNDER SECTIONS 13, 55(a) AND 55(i) OF THE ABKARI ACT. AND U/S 118(e) OF KP ACT AND SECTION 4(2)(e)(J) R/W SECTION 5 OF KERALA EPIDEMIC DISEASES ORDINANCE 2020, WHICH LED TO THE FILING OF ANNEXURE -A1.