Kerala High Court
Jabbar vs State Of Kerala on 19 August, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 19TH DAY OF AUGUST 2020 / 28TH SRAVANA, 1942
Crl.Rev.Pet.No.1036 OF 2015
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE
COURT OF THE 1ST ADDITIONAL SESSIONS JUDGE, KOZHIKODE DIVISION
IN CRA 79/2015 DATED 22.06.2015, WHICH AROSE FROM THE JUDGMENT
OF CONVICTION AND SENTENCE PASSED BY THE COURT OF THE
III ADDITIONAL ASSISTANT SESSIONS JUDGE, KOZHIKODE IN
SC 670/2013 DATED 22.01.2015
REVISION PETITIONER/APPELLANT/ACCUSED:
JABBAR
AGED 45 YEARS
S/O.MOIDEEN, PUTHUKANDOM PARAMBA HOUSE,
KALOOR ROAD, VALAYANAD, KOZHIKODE DISTRICT.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,KOCHI - 682 031.
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 12.08.2020, THE COURT ON 19.08.2020 PASSED THE FOLLOWING:
Crl.R.P.No.1036/2015
2
"CR"
R.NARAYANA PISHARADI, J
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Crl.R.P.No.1036 of 2015
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Dated this the 19th day of August, 2020
ORDER
The revision petitioner is the accused in the case S.C.No.670/2013 on the file of the Court of the Assistant Sessions Judge, Kozhikode.
2. On 27.06.2012, at about 20.15 hours, at the bus waiting shed near Mankavu Junction in Kozhikode, the Excise Inspector of Feroke Excise Range found the petitioner/accused in possession of a plastic cover which contained nine bottles, each having the capacity of 180 ml., of Indian Made Foreign Liquor (for short 'IMFL'). The bottles of liquor seized from the possession of the accused had the label "For Sale in Pondicherry State Only". The accused committed the offences punishable under Sections 55(i) and 58 of the Abkari Act, 1077 (hereinafter referred to as Crl.R.P.No.1036/2015 3 'the Act'). This, in short, is the prosecution case.
3. The trial court framed charge against the accused for the offences punishable under Sections 55(i) and 58 of the Act. The accused pleaded not guilty to the offences and he claimed to be tried.
4. The prosecution examined PW1 to PW6 and marked Ext.P1 to P8 documents and MO1 to MO3 material objects. No evidence was adduced by the accused.
5. The trial court found the accused not guilty of the offence punishable under Section 55(i) of the Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 58 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month.
6. The accused filed Crl.A.No.79/2015 before the Court of Session, Kozhikode challenging the order of conviction and Crl.R.P.No.1036/2015 4 sentence passed against him by the trial court under Section 58 of the Act. The appellate court confirmed the conviction as well as the sentence against the accused and dismissed the appeal.
7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused in the case has filed this revision petition.
8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
9. PW1 is the Excise Inspector who detected the offence. He has given evidence in detail regarding the occurrence. 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. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident.
10. Ext.P8 is the chemical analysis report received in respect of the sample of liquid which was sent for analysis. It Crl.R.P.No.1036/2015 5 shows that the sample of liquid contained 42.89% by volume of ethyl alcohol.
11. Based on the evidence adduced by the prosecution, the courts below have concurrently found that the accused possessed nine bottles of IMFL of a total quantity of 1.620 litres and that the bottles had the label "For Sale in Pondicherry State Only". I find no sufficient ground, in exercise of revisional jurisdiction, to interfere with that finding.
12. Advocate Sri.Prasanth, learned counsel for the petitioner, contended that the prosecution could not, by establishing the aforesaid fact, prove that the petitioner committed an offence punishable under Section 58 of the Act.
13. Section 58 of the Act states that, whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under the Act not to have been paid therefor, shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than Crl.R.P.No.1036/2015 6 rupees one lakh.
14. Section 58 of the Act has got two limbs. The first limb deals with possession of any quantity of liquor or any intoxicating drug knowing the same to have been unlawfully imported, transported or manufactured. The second limb of the provision deals with possession of liquor or of any intoxicating drug by a person knowing that duty, tax or rental payable under the Act had not been paid therefor.
15. In the instant case, the prosecution has got no case against the accused that he possessed the liquor with the knowledge that duty, tax or rental payable under the Act had not been paid for it. The prosecution has also no case that the accused possessed unlawfully manufactured liquor. The prosecution case is that he possessed unlawfully imported liquor.
16. Now, the question is whether the accused could be attributed with the knowledge that the liquor in his possession was unlawfully imported for the reason that the bottles of liquor had the label "For Sale in Pondicherry State Only" on them. Crl.R.P.No.1036/2015 7
17. Considering the distinction between the offences punishable under Sections 55(a) and 58 of the Act, in Purushan v. State of Kerala : 2002 (2) KLT 661, it has been held as follows:
"On the other hand, in Section 58, the possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. What is the distinguishing factor is that for the offence under Section 58, the person in possession has knowledge of the fact that the liquor was unlawfully imported, transported or manufactured or is knowing that the duty, tax or rental payable under the Act had not been paid. The possessor therein is not directly involved in the process of import, export or transport and all that he knows at the time of holding possession of the liquor is the fact that the liquor had not come through genuine source, but it had already been unlawfully imported, manufactured or transported".
18. The dictum laid down in Purushan (supra) stands affirmed by a Division Bench of this Court in Surendran v. Excise Inspector : 2004 (1) KLT 404. Though the distinction drawn between the two offences, in the abovementioned Crl.R.P.No.1036/2015 8 decisions, on the basis of the higher and lesser punishment earlier provided for the two offences is no more applicable, there can be no dispute with regard to the ingredients of the offence punishable under Section 58 of the Act.
19. As per Section 3(16) of the Act, import means to bring into the State. None of the witnesses examined by the prosecution has given evidence that the liquor found in the possession of the accused was imported liquor.
20. It is true that the bottles of liquor seized from the possession of the accused had the label "For Sale in Pondicherry State Only" on them. But, the mere presence of such label on the bottles of liquor, in the absence of other evidence, is not sufficient to raise a presumption that the liquor was imported or transported from a place outside the State (See Tippu Mohammed v. State of Kerala : 2015 (1) KLD 59).
21. At this juncture, it is pertinent to note that a person found to be in possession of liquor may not be the one who has brought the liquor into this State from another State and therefore, only for the reason that a person is found to be in Crl.R.P.No.1036/2015 9 possession of liquor, it cannot be concluded that he himself had brought it into the State and thereby, he has imported it (See Narayanan Nair v. State of Kerala : 2011 (3) KHC 472 :
2011 (3) KLT 722).
22. PW2 has given evidence that the bottles of liquor seized from the possession of the accused did not bear the security label of the Kerala State Beverages Corporation. Ext.P2 seizure mahazar also contains a recital to that effect. But, there cannot be a presumption that all liquor bottles without the seal of the Kerala State Beverages Corporation are imported from another State (See Venu v. State : 2012 (4) KHC 723). In Narayanan Nair (supra) also, it has been held that absence of stickers of the Kerala State Beverages Corporation on the bottles of liquor will not by itself prove that it is imported liquor.
23. Learned Public Prosecutor has contended that the accused did not offer any satisfactory explanation for the possession of liquor and therefore, the presumption under Section 64 of the Act that he committed the offence under Section 58 of the Act is attracted.
Crl.R.P.No.1036/201510
24. Section 64 of the Act provides that, in prosecutions under Sections 55, 55B, 56A, 57, 58, 58A and 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily.
25. Possession of IMFL by a person is not totally prohibited in the State. Section 13 of the Act prohibits possession of excess quantity of liquor than what is prescribed under the notification issued by the government. Permissible quantity of IMFL, which could be possessed by a person as on the date of occurrence, was three litres. In the instant case, the accused was found in possession of only 1.620 litres of IMFL. Therefore, unless the prosecution had proved that the liquor found in his possession was imported, the accused had no obligation to account for the Crl.R.P.No.1036/2015 11 permissible quantity of IMFL found in his possession.
26. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances (See Narsinga Rao v. State of A.P : AIR 2001 SC 318 and State of A.P v. Vasudeva Rao : AIR 2004 SC 960).
27. Foundational facts have to be proved by the prosecution before a presumption is drawn against the accused. In Kali Ram v. State of Himachal Pradesh : AIR 1973 SC 2773, it has been held as follows:
"The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to Crl.R.P.No.1036/2015 12 exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption".
28. A presumption cannot be drawn on the basis of another presumption. A presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning (See Suresh Budharmal Kalani v. State of Maharashtra : AIR 1998 SC 3258).
29. In Narsinga Rao (supra), it has been held as follows:
"However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion".
30. In the instant case, what the learned Public Prosecutor requests for is to draw a discretionary presumption that the liquor found in the possession of the accused was imported and then to raise the compulsory presumption under Section 64 of the Act to find the accused guilty of the offence under Section 58 of the Act. The court cannot adopt such a course. As noticed earlier, a presumption cannot be drawn on the basis of another Crl.R.P.No.1036/2015 13 presumption.
31. The discussion above leads to the conclusion that the accused cannot be found guilty of the offence punishable under Section 58 of the Act only on the ground that the bottles of liquor found in his possession had the label "For Sale in Pondicherry State Only".
32. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 58 of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge