Kerala High Court
G.Chaniya vs State Of Kerala on 6 March, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY,THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
CRL.A.No. 692 of 2004 (A)
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SC 721/2000 of ADDITIONAL SESSIONS COURT (ADHOC-I), KASARAGOD
APPELLANT(S)/ACCUSED::
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G.CHANIYA, S/O. AITHA,
AGED 43 YEARS, GOLIYADKAM, NEERCHAL.
BY ADV. SRI.M.RAMESH CHANDER
RESPONDENT(S)/COMPLAINANT::
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1. STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
2. THE STATION HOUSE OFFICER,
BADIADKA POLICE STATION, KASARAGOD.
BY PUBLIC PROSECUTOR SMT.JASMINE
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 06-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.692 of 2004
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Dated this the 6th day of March, 2014.
JUDGMENT
Appeal filed under Section 374 of the Code of Criminal Procedure.
2. Appellant challenges conviction and sentence under Section 55(a) of the Abkari Act (for short, " Act"). Prosecution case, shortly stated, is that on 13.03.2000 at 4.30 p.m., the appellant was found in possession of 40 bottles of Indian Made Foreign Liquor (IMFL), each bottle having a volume of 180 ml.. The liquor was searched out from his compound. In order to establish the prosecution case, four witnesses were examined and Exts.P1 to P6 marked. MOs 1 to 3 are the material objects.
3. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor.
4. PW1 is a witness to Ext.P1 seizure mahazar. He showed a volte-face to the prosecution case and failed to support the search and recovery of contraband from the property of the appellant. PW2 is a witness to Ext.P2 scene mahazar. He partly supported the prosecution case. However, evidence of PW2 may not render help to the prosecution in establishing the guilt of the appellant. PW3 is the Village Officer, who Crl.Appeal No.692/2004 2 issued Ext.P3 possession certificate. As per Ext.P3, the house in R.S.No.595/2C of Neerchal Village was in the possession of the appellant at the material time.
5. PW4 is the material witness in this case. He worked as Sub Inspector of Police and while on patrol duty along with other Police Officers, he got information that the appellant was vending illicit arrack from his house. At about 4.30 p.m. on 13.03.2000, he reached at the compound of the appellant. At that time, the appellant was standing by the side of a cowshed. On seeing the Police party, he attempted to escape. He was restrained by the Police. Thereafter, PW4 and party conducted a raid in the property and found out a plastic sack buried in a pit, slightly away from the cowshed. On opening the plastic sack, PW4 found 40 bottles, apiece containing 180 ml. IMFL kept therein. Appellant was arrested and Ext.P1 mahazar and other records were prepared. Ext.P5 is the forwarding note. It was submitted before the court on the next day. Ext.P6 is the chemical analysis report, which shows that the bottles sent for analysis tested positive for ethyl alcohol. It is to be noted here that there is no illegality or procedural lapses in the detection, seizure and sampling.
6. Learned counsel for the appellant contended that there is no allegation in the evidence of PW4 that the appellant possessed IMFL against the provisions of the Act. It is also contended that PW4, the detecting officer has no case that the appellant himself secreted the Crl.Appeal No.692/2004 3 contraband in his compound. I have carefully gone through the evidence tendered by PW4. He simply stated that the appellant tried to escape on seeing Police and they found out the plastic sack by themselves. In order to attract an offence under Section 55(a) of the Act, it must be established by the prosecution that the accused was in possession of liquor intended either for import or export. It is true that the prosecution has a case that the labels on the bottles showed that the liquor was intended for sale in the State of Karnataka. But, in the absence of any reliable evidence that the appellant imported the contraband or that he kept the same from where it was recovered, it is difficult to convict the appellant for an offence under Section 55(a) of the Act. PW4 in his chief examination has only spoken about the preparation of Ext.P1. Merely for the reason that Ext.P1 seizure mahazar was marked at the time of evidence, it cannot be considered under law that the contents of Ext.P1 stood proved. In this context, the difference between admitting a document in evidence and proving the contents will have to be borne in mind. There is absolutely no assertion or allegation made by PW4 that the appellant himself secreted the contraband and thereby he was possessing the same at the time of recovery. Learned Public Prosecutor relied on certain decisions to contend that the appellant was rightly convicted. Reliance is placed on the decision in Paravan v. State of Kerala (2007 (1) KLT 396) to argue a proposition that if the accused is found in possession of the contraband liquor and is Crl.Appeal No.692/2004 4 unable to account for the same, it can be presumed that he was in possession of the contraband liquor, even if the premises belonged to somebodyelse and such an accused is liable to be convicted under Section 55(a) of the Act. In this decision also the burden of prosecution to prove accused's possession of the liquor was noticed. Another decision relied on by the learned Public Prosecutor is Paul v. State of Kerala (2013 (1) KHC 226). That was a case where large quantity of IMFL was stored in a gas agency. Accused was found to be the licensee of the gas agency. In that context, this Court found that IMFL kept in the gas agency could be presumed to be in the possession of the accused. This decision is distinguishable on facts. This Court in Biju v. State of Kerala (2012 (4) KLJ 256) considered that once possession of the contraband article is established, by applying Section 64 of the Act it becomes the responsibility of the accused to prove that it was not in his conscious possession. This is a case where the allegation in Ext.P1 is that the appellant was keeping IMFL bottles in a pit in his compound. Then, how possession can be proved is a pertinent question. It can be proved in many ways. At least, by making an assertion by the detecting officer that the accused himself was responsible for keeping the same in his compound. Strangely, PW4 has not even mentioned a syllable to implicate the appellant for keeping the contraband articles in his compound. In the absence of any positive assertion by the witnesses on the side of the prosecution, this Court cannot Crl.Appeal No.692/2004 5 presume that the accused might have kept the contraband in his property and, therefore, he should be presumed to be in possession of the same. Presumption under Section 64 of the Act comes into play only on the prosecution proving certain basic facts. Therefore, I find that the prosecution has to fail for the reason that the burden of the prosecution to allege the ingredients of the offence has not been discharged in this case.
In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in S.C.No.721 of 2000 on the file of Additional Sessions Court (Adhoc-I), Kasaragod is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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