Kerala High Court
Ballu @ Balakrishnan vs State Of Kerala on 17 September, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936
CRL.A.No. 1651 of 2004
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S.C.NO. 899/2000 OF ADDITIONAL SESSIONS COURT (AD HOC - I), KASARAGOD
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APPELLANT / 1ST ACCUSED :
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BALLU @ BALAKRISHNAN, S/O.MATHADY,
AGED 40 YEARS, RESIDING AT SOOMAJE, ENMAKAJE VILLAGE.
BY ADV. SRI.M.RAMESH CHANDER
RESPONDENTS / COMPLAINANT :
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1. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. STATION HOUSE OFFICER,
BADIADKA POLICE STATION.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 17-09-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
K. Ramakrishnan, J.
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Crl.Appeal.No.1651 of 2004
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Dated this, the 17th day of September, 2014.
J U D G M E N T
First Accused in S.C.No.899/2000 on the file of Additional Sessions Court (Adhoc-I) is the appellant herein. The appellant was charge sheeted by the Sub Inspector of Police, Badiadka Police Station along with others in Crime No.157/99 of Badiadka Police Station alleging offence under Sectin 55(a) of Abkari Act.
2. The case of the prosecution in nutshell was that on 17.10.1999 at about 12.30 p.m, the accused persons including the present appellant were found to be in possession of 110 bottles, each containing 375 ml of Indian made Foreign Liquor manufactured in the State of Karnataka and transporting the same in the autorickshaw with No.KL 14/222 along the public road at Soomaje in Enmakaje village and they were importing liquor from State of Karnataka to Kerala in contravention of the provisions of the Abkari Act and thereby, all of them have committed the offence punishable under Section 55(a) of Abkari Act. After investigation, final report was filed before the Judicial First Class Magistrate Court, Kasaragod and it was Crl.Appeal.No.1651 of 2004 : 2 : taken on file as C.P.No.121/2000 and the learned magistrate committed the case to the Sessions Court, Kasaragod and the learned Sessions Judge has taken cognizance of the case as S.C.No.899/2000 and thereafter, made over to Additional Sessions Court (Adhoc-I), Kasaragod for disposal.
3. When the appellant appeared before the court below along with other accused persons, the learned Additional Sessions Judge, after hearing the Additional Public Prosecutor of that court and the Counsel for the defence, framed charge under Section 55(a) of the Abkari Act and the same was read over and explained to them and pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Ext.P1 to P9 and MOI series were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under Section 313 of Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. The present appellant who is the first accused in the lower court further submitted that no articles were seized from his possession and he was taken into custody by the police from his house and thereafter, falsely implicated in the case. Crl.Appeal.No.1651 of 2004 : 3 : The other accused persons submitted that they have not committed any offence. Since the evidence in the case did not warrant an acquittal under Section 232 of Code of Criminal Procedure, the learned Additional Sessions Judge directed the accused to enter on their defence, but no defence evidence was adduced on their side. After considering the evidence on record, the court below found the accused Nos. 2 and 3 not guilty as their identity has not been established beyond reasonable doubt and acquitted them of the charge levelled against them giving them the benefit of doubt under Section 235(1) of Code of Criminal Procedure. But, the learned Additional Sessions Judge found the appellant guilty under Section 55(a) of Abkari Act and convicted him thereunder and after hearing on the question of sentence, sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for six months more. Dissatisfied with the order of conviction and sentence passed by the court below, the appellant has preferred the above appeal before this court.
4. Heard the Counsel for the appellant and learned Public Prosecutor.
Crl.Appeal.No.1651 of 2004 : 4 :
5. The Counsel for the appellant submitted that though the prosecution had a case that the articles seized were manufactured in Karnataka, they have no case that it was prohibited for sale in Kerala. Unless they establish that it is an illicit liquor not intended to be sold in Kerala, then, mere possession of the article alone will not be sufficient to convict the appellant for the offence under Section 55(a) of Abkari Act and at the most it may fall under Section 63 of the Abkari Act for keeping possession of excess quantity without any document. Further, he had also argued that there was delay of eight days in producing the articles for which there was no proper explanation. So, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles seized were the same articles which were produced before court in respect of which Ext.P6 Chemical Analysis Report was obtained and that benefit also must be given to the accused. So, according to the learned Counsel, the court below has not considered these aspects in the right prospective and erred in convicting the appellant for the offence under Section 55(a) of Abkari Act. Even if the court feels that he was found to be in possession of the article, then, the offence attracted is only Crl.Appeal.No.1651 of 2004 : 5 : under Section 63 of the Abkari Act and not under Section 55(a) of the Abkari Act.
6. On the other hand, the learned Public Prosecutor submitted that it will be seen from Ext.P1 seizure mahazar that it was intended to be sold in Karnataka only and there was no sticker of the Kerala State Beverages Corporation seen on the bottles which is to be found on the cap of the bottle so as to allow the article to be sold in Kerala which is not seen in the bottle. Further, he was not having any documents with him even to prove that the possession is legal. So, once possession of an article which was not manufactured in Kerala was proved by the prosecution with the accused, then, the presumption under Section 64 of the Abkari Act will be attracted and the burden shifts to the accused to prove that he was in possession of licit liquor and he had not committed the offence under Section 55(a) of the Abkari Act. The transport of an article even within State will attract the offence under Section 55(a) of Abkari Act. So, according to the learned Public Prosecutor, the court below was perfectly justified in convicting the appellant for the offence under Section 55(a) of the Abkari Act.
Crl.Appeal.No.1651 of 2004 : 6 :
7. The case of the prosecution was that on 17.10.1999 at about 12.30 p.m, PW1 the detecting officer, the Sub Inspector of Police, Badiadka Police Station got information that accused persons intended to transport arrack from Karnataka through Soomaje in Enmakaje village. So, he along with the party went to that place and at that time he saw an autorickshaw with No.KL 14/222 coming through the public road at Soomaje in Enmakaje village. When they saw the police, the driver of the autorickshaw stopped the autorickshaw and the driver along with two persons seen in the autorickshaw got down in the autorickshaw and ran away from the place. They chased them, but they could catch hold of only the first accused who is the appellant herein and others escaped. Thereafter, he along with the first accused who is the appellant herein came near to the autorickshaw and examined the autorickshaw and found that there were two sacks and on examination, he found that in the two sacks, there were 110 bottles of Indian made Foreign Liquor manufactured in Karnataka and they were not having any document with them and it was not containing the sticker of the Kerala State Beverages Corporation as well. So, he was satisfied that it Crl.Appeal.No.1651 of 2004 : 7 : was not intended to be sold in Kerala and it was imported from Karnataka for the purpose of sale in Kerala in violation of the provisions of Abkari Act and so, he had taken four bottles as sample, two each from each sack as they were containing the similar descriptions in all the bottles and numbered them as 1 (1) and 1(2), 2(1) & 2(2) and thereafter, sealed the same, labelled the same and obtained the signature of the witnesses and the accused and he had also put the signature and seized the bags, the sample bottles and other remaining bottles as per Ext.P1 seizure mahazar in the presence of PW1 and another witness. Thereafter, he arrested the first accused and came to police station and registered Ext.P3 First Information Report as Crime No.157/99 (wrongly shown as Crime No.169/99 in the judgment) of Badiadka Police Station against three accused persons under Section 55(a) of Abkari Act. Thereafter, he prepared Ext.P4 property list and he prepared Ext.P2 scene mahazar in the presence of PW2 and another. He produced the accused before court and he was remanded to custody and thereafter, he was released on bail later. He got information regarding the other persons ran away from the place as accused Nos. 2 & 3 from the appellant and later, they Crl.Appeal.No.1651 of 2004 : 8 : were also arrested and they were released on bail later. He produced the articles along with Ext.P4 property list and sent Ext.P5 forwarding note to the court and samples were sent from court for analysis and Ext.P6 Chemical Analysis Report obtained which shows that the sample contained Ethyl alcohol. Further investigation in this case was conducted by PW4, he gave Ext.P9 report showing the correct name and address of the third accused completed the investigation and submitted final report.
8. PW1 had admitted his signature in Ext.P1 seizure mahazar. But, he denied having seen the actual seizure. PW2 also admitted his signature in the scene mahazar. So, the prosecution relies on the evidence of PWs 3 & 5 for the purpose of proving the seizure. PW3 is the detecting officer and conducted part of the investigation. He had categorically stated that on that day, he found three accused persons coming in the autorickshaw and on seeing the police at the place of occurrence, they stopped the autorickshaw and ran away from the place and they chased and they could catch hold of first accused alone and others escaped from the place. Thereafter, he had examined the autorickshaw and he found Crl.Appeal.No.1651 of 2004 : 9 : that there were two sacks which contained 110 bottles (70+40) of 375 ml. each of Indian made Foreign Liquor manufactured in Karnataka and after complying with the formalities of taking sample and he had sealed the same and seized the same as per Ext.P1. His evidence was corroborated by the evidence of PW5 who accompanied him on that day. Though they were cross examined at length, nothing was brought out to discredit their evidence regarding this aspect. It is settled law that merely because the attesting witnesses to the seizure mahazar turned hostile is not a ground to disbelieve the case of the prosecution, if the court is satisfied with the evidence given by the official witnesses regarding the seizure and arrest of the accused. There is nothing brought out to discredit the evidence of PWs 3 & 5 regarding the seizure of 110 bottles of Indian made Foreign Liquor manufactured in Karnataka while it was transported in the autorickshaw involved in the case. It is also not disputed fact that the articles seized was manufactured in Karnataka. The appellant had no case that he was having any documents with him for possessing the article and it was purchased from Kerala from a licenced dealer as well. It is true that there is Crl.Appeal.No.1651 of 2004 : 10 : nothing to show that it was not intended to be sold in Kerala from the seizure mahazar. But, PW3 had categorically stated that it does not contain the sticker of the Kerala Beverages Corporation who is the sole dealer permitted to sell Indian made Foreign Liquor in Kerala. Further, Rule 9 of the Kerala Foreign Liquor Rules permits only the Kerala Beverages Corporation with the permit to obtain from the Excise Commissioner to import Foreign liquor manufactured from outside Kerala. Merely because it does not show that it was not intended to be sold in Kerala as contended by the Counsel for the appellant, it cannot be said that it was permitted to be sold in Kerala unless the accused is able to show that he had purchased the same from a licenced dealer from Kerala which was permitted to be sold in Kerala as per the provisions of the Kerala Foreign Liquor Rules. Once the possession of the article with the accused without any documents and without any explanation from the accused is proved by the prosecution, then, presumption under Section 64 of the Abkari Act will be attracted and it will be presumed unless contrary is proved that it was intended to be sold in Kerala under Section 55(a) of Abkari Act.
Crl.Appeal.No.1651 of 2004 : 11 :
9. Further, in the decision reported in Raman Vs. State of Kerala [2007 (4) KLT 223], this court has held that even inter state transport of a contraband article will amount to transport mentioned in Section 55(a) of the Abkari Act. So, under the circumstances, the lower court was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused had transported the Foreign Liquor manufactured in Karnataka and he was not having any document in his possession to prove that it is a licit liquor entitled to be possessed by him in Kerala and thereby, he had committed the offence punishable under Section 55(a) of the Abkari Act and rightly convicted him for the said offence. I don't find any reason to interfere with the finding of the court below on this aspect.
10. As regards the sentence is concerned, the court below had sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for six months. Once the offence is proved, there is a minimum sentence of fine of Rs.1,00,000/- to be imposed. So, the sentence of fine of Crl.Appeal.No.1651 of 2004 : 12 : Rs.1,00,000/-imposed by the court below cannot be said to be harsh. It is a Foreign Liquor and not an article which is totally prohibited from consumption just like arrack or spirit. It is true that importing article which is not permitted to be sold in Kerala from outside state will affect the revenue except that it cannot be said that it is a heinous offence of offence like selling arrack or narcotic substances. So, considering the circumstances, the substantive sentence of rigorous imprisonment for one year and default sentence of rigorous imprisonment for six months imposed by the court below appears to be on the higher side and reducing the same to three months simple imprisonment each will be sufficient and that will meet the ends of justice.
So, the appeal is allowed in part. The order of conviction passed by the court below against the appellant under Section 55(a) of Abkari Act and imposition of fine of Rs.1,00,000/- are confirmed. The substantive sentence for rigorous imprisonment for one year and also default sentence of rigorous imprisonment for six months are set aside and the same is modified as follows:
The appellant is sentenced to undergo simple Crl.Appeal.No.1651 of 2004 : 13 : imprisonment for three months and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months more. With the above modification of the sentence alone, the appeal is allowed in part. The set off allowed by the court below is also hereby confirmed.
Office is directed to communicate this judgment to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge