Kerala High Court
V.N.Shaji vs State Of Kerala on 31 October, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934
CRL.A.No. 1459 of 2005 ( )
--------------------------
SC.304/2002 of ADDL.DISTRICT & SESSIONS COURT, FAST TRACK,
(ADHOC)-II, KOZHIKODE
APPELLANT(S)/ACCUSED NOS2 TO 4:
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1. V.N.SHAJI, S/O.NARAYANAN,
AGED 38, PUTHUANPURAYIL HOUSE, MANAKKADAVU
VAYIKAMBA ANGADI, KANNUR DISTRICT.
2. E.N.SATHEESAN, AGED 32,
S/O.NARAYANAN, PUNCHAVALIKAL HOUSE, KADAYANI ANGADI
MANIMALA.
3. C.M.JOY JOSEPH @ C.M.PHILIP,
S/O.JOSEPH, AGED 32 YEARS, VADAKKEMURIYIL HOUSE
MANIMALA, NELLITHANAM, KARAKKATTU
KOTTAYANM.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.GEORGE PHILIP
SRI.R.ANIL
SRI.RAJU RADHAKRISHNAN
SRI.ANIL K.MOHAMMED
SRI.DELVIN JACOB MATHEWS
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2012,
ALONG WITH CRA.NO.472 OF 2009, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.Nos.1459 of 2005 & 472 of 2009
-------------------------------
Dated this the 31st day of October, 2012.
J U D G M E N T
Though the above appeals are filed by different accused, these appeals are being heard together, since the challenge in these appeals are against the very same judgment of the trial court ie., judgment dated 5.8.2005 in S.C.No.304 of 2002 of the court of Additional District and Sessions Judge, Fast Track-II, Kozhikode, and the facts and circumstances and the question of law involved in the case are identical. Criminal appeal No.1459 of 2005 is preferred by accused nos.2 to 4, whereas Criminal appeal No.472 of 2009 is filed by the 1st accused in the above sessions case.
2. The prosecution case is that on 4.4.2000 at about 23.30 hours on the northern side of the Nallalam police station on the Kozhikode-Ramanattukara N.H., accused 2 Crl.A.Nos.1459 of 2005 & 472 of 2009 no.1 was found seated on the right side behind the second seat of the driver's seat of the bus KL-10-D-2714 Maliyil bus which was plying from Payyannur to Kottayam. It is the further case of the prosecution that A1 was found transporting 72 bottles of 375 ml. Mac.Dowels Caesar VSOP Brandy, 130 bottles of Hay Ward's Fine Brandy, 50 bottles of Original Choice Deluxe whisky and 25 bottles of Polo Club Malt Whisky total of 277 bottles of Indian made foreign liquor, which were kept in 7 card board boxes and one cardboard box near to the driver's seat, one cardboard box on his lap with different varieties of Indian made foreign liquor and 5 cardboard boxes were placed on the upper portion of the bus. It is the further case of the prosecution that, in order to get an unlawful gain accused nos.2 to 4 who are employees of the above bus permitted A1 to transport 277 bottles of Indian Made Foreign Liquor in the bus. Thus according to the prosecution, the accused 4 in numbers have committed the offence punishable under section 55(a) of the Abkari Act and Rule 9 of Foreign 3 Crl.A.Nos.1459 of 2005 & 472 of 2009 Liquor Rules and Section 120(B) of IPC and thus Crime No.74/2000 of Nallalam Police Station was registered for the said offence.
3. On completing the investigation, report was filed before the court of Judicial First Class Magistrate-V, Kozhikode, whereupon C.P.No.39/01 was instituted. Subsequently, by order dated 20.6.2002, the learned Magistrate has committed the case to the Sessions court, Kozhikode, where S.C.No.304/02 was instituted and thus the case was made over to the court of Assistant Sessions Judge (Principal), Kozhikode, for disposal. Thus when all the accused appeared before the said court, formal charge was framed against all the accused for the offence punishable under section 55(a) of the Abkari Act and section 120(B) of IPC. When the said charge read over to the accused and explained to them, they denied the charge and pleaded not guilty. Thereafter, the case was withdrawn and made over to the present trial court for disposal and thus the trial was continued in the present 4 Crl.A.Nos.1459 of 2005 & 472 of 2009 trial court, during which the prosecution adduced its evidence consists of the oral testimony of Pws.1 to 5 and documents ie., Exts.P1 to P13. M.Os.1 to 5 material objects were identified and marked. No evidence either oral or documentary adduced from the side of the defence. Finally, the trial court found that the prosecution has proved the case against A1 to A4. Accordingly, the accused nos.1 to 4 are acquitted under section 235 of Cr.P.C. for the offence under section 120(B) of IPC. A1 is acquitted for the offence under section 63 of the Abkari Act. However, the learned Judge of the trial court has found that A1 to A4 are guilty under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules and accordingly all the accused are convicted for the said offences. On such conviction, A1 to A4 are sentenced to undergo rigorous imprisonment for 3 years each and to pay fine of `1 lakh each and in default to undergo simple imprisonment for a further period of 3 months each under section 55(a) of the Abkari Act. No separate sentence is 5 Crl.A.Nos.1459 of 2005 & 472 of 2009 awarded under Rule 9 of the Foreign Liquor Rules. It is the above finding and order of conviction and sentence that are challenged by the above accused by filing the above two appeals.
4. I have heard Adv.Sri.P.Chandy Joseph learned counsel for the 1st accused who preferred Crl.A.No.472 of 2009 and Adv.Sri.B.Raman Pillai learned counsel for the accused nos.2 to 4 who preferred Crl.A.No.1459 of 2005. I have also heard Adv.Smt.S.Hyma learned Public Prosecutor for the State.
5. As I indicated earlier, in order to buttress the allegation against the appellants/accused, the prosecution has mainly depends upon the evidence of Pws.1 to 5, among which PW5 is the Detecting Officer. The first witness examined by the prosecution is PW1, who is the then Head Constable of Nallalam Police station, who accompanied PW5 at the time of the detection of the crime. When PW1 was examined, he had deposed before the court in terms of the prosecution allegation. Ext.P1 seizure 6 Crl.A.Nos.1459 of 2005 & 472 of 2009 mahazar and Ext.P2 body mahazar of the bus in question were marked through PW1. PW1 has also identified M.Os.1 to 5 series. PW2 is an independent witness cited and examined by the prosecution in support of its case but he turned hostile. PW3 is the then Sub Inspector of police attached to Nallalam police station, who joined in the said station on 11.10.2000 and continued the investigation. When PW3 was examined, Ext.P3 report was marked through him by which the offence under Rule 9 of the Foreign Liquor Rules sought to be added. It was PW3 who filed the charge finally. PW4 is another Sub Inspector of police attached to Farok police station, who conducted the major portion of the investigation. When PW4 was examined, Ext.P12 forwarding note dated 10.8.2000 and Ext.P13 chemical examination report were marked through him.
6. PW5, as I stated, is the police officer who detected the crime. When PW5 was examined, he had narrated about the detection, arrest, seizure of the contraband 7 Crl.A.Nos.1459 of 2005 & 472 of 2009 article and sample of the seized contraband article. According to him, while himself and party were on patrol duty, he received information about the illegal transportation of Indian Made Foreign liquor. According to PW5, the information so received has indicated the description about the dress worn by A1 and that the 1st accused was travelling in the second seat behind the driver's seat and the information was also to the effect that the 1st accused was holding a box in his lap. According to PW5, on getting the information, they started to check the vehicles coming from the north along the road which lying in front of the police station. Thus, the bus was intercepted and A1 was questioned but he replied that the box contains varnish. According to PW5, when the cardboard box held by the 1st accused was opened, he found different varieties of Indian Made Foreign liquor. On further questioning of the 1st accused, he discloses that five boxes of Indian Made Foreign liquor on the top of the bus and one box just behind the driver seat, being transported 8 Crl.A.Nos.1459 of 2005 & 472 of 2009 with the consent and connivance of A2 to A4. According to PW5, on receiving such an information, the contraband article kept on the top portion of the bus was brought down and inspected all the 7 boxes in the presence of witnesses, and he had deposed the details of the contraband article and the brand names of the Indian Made Foreign liquor and the number of bottles so found. According to PW5, as A1 disclosed that these contraband articles are transported with the consent and connivance of A2 to A4, A1 to A4 were arrested on the spot and the contraband articles and the bus were also seized. According to PW5, one bottle from each brand has taken for the purpose of chemical analysis. According to PW5, he had prepared Ext.P1 body mahazar of the bus and the trip sheet of the bus was taken as Ext.P5. The permit issued by the R.T.O. is also seized, which is marked as Ext.P5. According to PW5, on completing the seizure, the accused as well as the contraband articles were brought to the station and he registered Ext.P6 FIR. When PW5 was examined, Exts.P7 9 Crl.A.Nos.1459 of 2005 & 472 of 2009 to P10 arrest memo of the accused nos.1 to 4 were marked. According to PW5, the accused were produced before the court with Ext.P11 remand report. According to PW5, the thondi articles were in his safe custody, till the same has been produced before the court. These are the evidences referred to and relied on by the learned Judge of the trial court in support of his finding and for convicting the accused/appellants.
7. Learned counsel for the appellants strenuously submitted that the trial court is incorrect and illegal in convicting the appellants, since the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. After taking me through section 55 of the Abkari Act, the learned counsel for the appellants vehemently submitted that the prosecution has no specific allegation against the accused that the contraband articles in question were brought from outside the State of Kerala and transported through the State. According to the learned counsel, absolutely no evidence is produced by the 10 Crl.A.Nos.1459 of 2005 & 472 of 2009 prosecution to prove that A1 was a passenger of the bus controlled by accused nos.2 to 4. It is also the contention of the counsel that, no convincing evidence or materials are produced by the prosecution to show that A1 has transported the contraband articles in question with the knowledge or consent of the accused nos.2 to 4. According to the defence, the FIR itself was registered on the basis of the confession statement of A1 which is impermissible in law. In order to prove the falsity of the prosecution allegation, learned counsel has pointed out that initially the FIR was registered for the offence under section 8(2) of the Abkari Act as well, even though the police officers are claimed to have realised that the contraband articles are Indian Made Foreign liquor. According to the learned counsels, absolutely there is no independent evidence or materials to prove the allegation of the prosecution against the accused, except the confession statement of the 1st accused. Learned counsel for the appellants are unanimous in their submissions that, the investigation was 11 Crl.A.Nos.1459 of 2005 & 472 of 2009 conducted improperly and illegally, since the major part of the investigation was undertaken by PW4, who is the then Sub Inspector of police, Farok police station, who has no jurisdiction with respect to the offence allegedly detected by PW5 within the territorial jurisdiction of Nallalam police station. After taking me through the various provisions contained in the Abkari Act, it is the submission of the learned counsels that, PW4 cannot be treated as an Abkari Officer for the purpose of investigation of crime involved in the present case. It is also the contention of the counsel that there was inordinate delay in producing the contraband article before the court and such a long delay of 4 months are not properly explained by the prosecution. It is also pointed out by the counsel that regarding the proper custody of the contraband article allegedly seized from the possession of the 1st accused, there is no convincing and acceptable evidence, especially when the deposition of PW5 and PW4 contradict each other regarding the custody of the contraband article. Thus 12 Crl.A.Nos.1459 of 2005 & 472 of 2009 according to the learned counsels for the appellants, the findings of the court below are not legally and factually sustainable and are liable to be interfered with and the appellants are entitled to get a clear acquittal.
8. On the other hand, Smt.S.Hyma learned Public Prosecutor submitted that the findings of the court below are supported by the evidence and materials on record and there is no effective challenge with respect to the seizure effected by PW5, from the possession of the 1st accused. According to the learned Public Prosecutor, accused nos.2 to 4-being the crew of the bus in question, it was incumbent upon them to see that no contraband articles are transported in their bus. But in the present case, no convincing explanation is forthcoming from accused nos.2 to 4 for the recovery of contraband articles from the bus, which was under the control of accused nos.2 to 4. Thus, according to the learned Public Prosecutor, the prosecution has adduced sufficient evidence in support of its allegation against the appellants and the learned Judge 13 Crl.A.Nos.1459 of 2005 & 472 of 2009 of the trial court has accepted the same and accordingly found that the appellants are guilty for the charges levelled against them and therefore no interference is warranted.
9. I have carefully considered the arguments advanced by the counsel for the appellants and the learned Public Prosecutor. I have thoroughly perused the judgment of the trial court and scrutinised the evidence and materials on record.
10. In the light of the rival contentions advanced by the counsel for the appellants as well as the learned Public Prosecutor and in the light of the evidence and materials referred, the question that arises for consideration is whether the trial court is justified in its finding and convicting the appellants for the offence under section 55
(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules.
11. As I indicated earlier, though the appellants have faced charge for the offence punishable under section 55
(a) of the Abkari Act and Rule 9 of the Foreign Liquor 14 Crl.A.Nos.1459 of 2005 & 472 of 2009 Rules r/w 63 of the Abkari Act and section 120(B) of IPC, the findings against the appellants are only under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. Section 55(a) deals with illegal import, which reads as follows :-
" For illegal import, etc.-- Whoever in contravention of this Act or of any rule or order made under this Act
(a) imports, exports [transports, transits or possesses] liquor or any intoxicating drug; or .........." Recently, a learned Judge of this Court in the decision reported in Narayanan Nair v. State of Kerala (2011(3) KLT 722) has held that, to prove an offence under Section 55(a) read with R.9 of Foreign Liquor Rules 1974, prosecution must prove that accused "brought" IMFL into State of Kerala, from some place which lies outside the State. Now let us consider whether the prosecution allegation and evidence and materials on record are sufficient to constitute the offence under section 55(a) of the Kerala Abkari Act, especially in the light of the decision of this Court cited supra. As per the police report, the 15 Crl.A.Nos.1459 of 2005 & 472 of 2009 charge against the appellant/the 1st accused is that, while he was travelling in a bus which was plying from Payyannur to Kottayam bearing registration No.KL-10-D- 2714, found in possession of Indian Made Foreign Liquor which was meant for sales in Pondichery only and transported the same, and thereby committed the offence under section 55(a) of the Abkari Act and under Rule 9 of the Foreign Liquor Rules and section 120(B) of IPC. The court charge dated 15.12.2000 is also to the effect that the Indian Made Foreign liquor which was meant for sales exclusively in Pondichery was brought and thereby committed the offence under section 55(a) of the Abkari Act and under Rule 9 of the Foreign Liquor Rules. There is no specific charge that the accused/appellants obtained it from a particular place outside the State and transported from that place to the State of Kerala. I have gone through the deposition of PW5 repeatedly to find out whether he had got any case in terms of section 55(a) of the Abkari Act. In the chief examination of PW5 he stated that, "Night 16 Crl.A.Nos.1459 of 2005 & 472 of 2009 patrol 23 KL - 10 - D - 2714 . 23.30 police station- NH-
driver- 2-)
seat- 1 ." He
continued to depose that, "
. driver- seat-
5
.
.
cardboard ." He had also
stated that, "Owner, conductor, cleaner
17
Crl.A.Nos.1459 of 2005 & 472 of 2009
1 ." PW5 has not stated
anything more, other than the arrest of the accused and the seizure of the contraband articles. During the cross examination of PW5, he had stated that, 1 ticket . 1 conductor ."
So the evidence of PW5 is not sufficient to prove that the accused has transported and brought it from outside the State of Kerala.
12. In this case, the major portion of the investigation was conducted by PW4. In the chief examination he has stated that, he undertook the investigation and questioned the witnesses and thereafter, returned the file to Nallalam Sub Inspector. During the cross examination for A2 to A4, PW4 has stated that, "
." He
had also deposed that, "
18
Crl.A.Nos.1459 of 2005 & 472 of 2009
. Packet
, ." During the cross examination
for A1, PW4 has further stated that, "
.
.
. book, ticket
." So the prosecution did not conduct
any effective investigation and collect any material or evidence to prove that the contraband articles are purchased or transported by the accused from any particular place or shop outside the State of Kerala. The only material available, probably shows that the liquor seized is meant for sale in Pondichery and the said fact itself is not sufficient to attract criminal liability against the accused.
13. Now the question remains for consideration is 19 Crl.A.Nos.1459 of 2005 & 472 of 2009 whether the available materials and evidence on record are sufficient to connect A1 and other accused with the allegation raised by the prosecution. Ext.P6 FIR itself shows that the same was drawn by PW5 on the basis of the statement said to have made by A1. No confession statement is separately recorded by PW5 and no recovery was effected on the basis of such a disclosure statement. Having regard to the facts and circumstances involved in the case, especially in the light of the evidence of PW5 it can be seen that he had prior information about the alleged transportation of contraband article. So according to me, the disclosure statement allegedly made by A1 has no evidentiary value at all. Therefore, the very inception of the prosecution case itself is under shadow of doubt. If the evidence of PW5 is excluded, absolutely there is no evidence to show that the 1st accused was a passenger of the bus in question. The prosecution has miserably failed to produce any document or material to show that the 1st accused was one of the passengers of the bus in question. 20 Crl.A.Nos.1459 of 2005 & 472 of 2009 Absolutely there is no evidence to show that, from which point A1 got into the bus during its journey from Payyannur to Kottayam. Atleast the prosecution could have examined any one of the co-passengers of A1 to show that A1 has got into the bus from a particular place in the State of Pondichery with the contraband article, but absolutely there is no evidence. No enquiry was conducted by any of the Investigating officers to show that A1 purchased the contraband article from outside the State of Kerala. So absolutely there is no evidence or material to prove the case of the prosecution that, A1 transported these contraband articles from outside the State of Kerala. It is also relevant to note that though PW2-an independent witness was examined by the prosecution to prove its case to get corroboration for the evidence of Pws.1, 3, 4 and 5, the said witness turned hostile. Suffice to say, PW2 is not a passenger of the bus in question. The prosecution has not made any attempt to examine any of the passengers in the bus to prove the presence of the 1st accused and the 21 Crl.A.Nos.1459 of 2005 & 472 of 2009 alleged seizure of contraband article from his possession and from the bus. So the evidences of the official witnesses of the prosecution are not corroborated by the independent evidence. So, absolutely there is no evidence to prove that A1 was a passenger of the bus in question and the contraband article was seized from his possession.
14. PW4 the Sub Inspector of police, Farok police station, who undertook the investigation has categorically stated that on seeing the cardboard boxes, nobody can say that the content of those boxes are Indian Made Foreign liquor and he actually realised that the box contained Indian Made Foreign liquor only when the boxes were opened. If that be so, I find no reason to believe that even if the case of the prosecution is admitted as correct regarding the transportation of the contraband article, the same was carried out with the consent and connivance of accused nos.2 to 4. In order to attribute any allegation against A2 to A4 that, with their connivance and consent A1 had transported the contraband article, there must be 22 Crl.A.Nos.1459 of 2005 & 472 of 2009 some evidence or materials to show that they have came across A1 with the contraband article. It is also relevant to note that, if actually A1 got on the top of the bus, while it was parking somewhere, without the knowledge of the notice of A2 to A4, it cannot be said that they have granted consent for the same. So for that purpose and ascertaining certain facts, the prosecution must have a case that A1 got into the bus from a particular stop or place and the other accused A2 to A4 had an occasion to see the accused with the hardboard box and to ascertain from A1 regarding the content of the boxes. In the present case, the prosecution has no such a positive case. Even according to PW5, when he questioned A1 about the content of the hardboard boxes, the reply was to the effect that the same was varnish. PW4 has stated that on seeing the boxes, nobody can say that the content of the boxes are contraband articles. The same position is applicable to A2 to A4. Therefore, at no stretch of imagination it can be held that the hardboard boxes found either on the laps of A1 or near 23 Crl.A.Nos.1459 of 2005 & 472 of 2009 the side of the driver seat contain liquor and that the same came to the notice of the accused nos.2 to 4. So, according to me, the prosecution has also failed to prove the allegation against the accused nos.2 to 4 that A1 transported the contraband article with their consent and knowledge.
15. It is pertinent to note that beside the failure of the prosecution to conduct a proper investigation so as to find out the source or the place at which the contraband article loaded in the bus by A1, the prosecution has adopted an illegal investigation by entrusting the same with PW4, who is not competent to conduct the investigation with respect to the offence committed in the territorial jurisdiction of another police station. As per Section 3(2) of the Abkari Act, an "Abkari Officer" means the [Commissioner of Excise] or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5 and as per Section 3(6) an "Abkari Inspector" means an officer appointed under section 4, clause (d). Section 24 Crl.A.Nos.1459 of 2005 & 472 of 2009 70 of the Kerala Abkari Act deals with the conferring of powers and making of appointments, which reads as follows :-
"All notification and orders conferring powers, imposing duties and making appointments under this Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof."
So as per the provisions of the Abkari Act, only the officers who are authorised under the provisions of the said Act can invoke powers under section 40 to 53 of the Kerala Abkari Act and the powers for authorisation are vested with the Government. Therefore, PW4 the Sub Inspector of police, Faroke police station, is not empowered to conduct an investigation with respect to an offence taken place beyond his jurisdiction or within the territorial jurisdiction of another officer, unless there are specific authorisation of power by the State Government or any other competent authority. So in the present case, the prosecution has not conducted a proper and legal investigation to find out the 25 Crl.A.Nos.1459 of 2005 & 472 of 2009 source of the contraband article or the place from which A1 allegedly obtained the contraband article and the prosecution adopted an illegal and improper measures towards the investigation. So the investigation conducted by the prosecution is also cannot be approved.
16. In the light of the above facts and circumstance and evidence and materials referred and in view of the discussion, I am of the view that, the prosecution has miserably failed to prove its allegation against the appellants beyond reasonable doubt but the learned Judge of the trial court, without proper appreciation facts and circumstances involved in the case and evaluating the evidence, promptly found in favour of the prosecution and held that the appellants are guilty. Hence I am unable to sustain the conviction recorded by the trial court against the accused. Consequently, the conviction imposed against the appellants by the trial court is set aside.
In the result, these appeals are allowed setting aside the judgment dated 5.8.2005 in S.C.No.304 of 2002 of the 26 Crl.A.Nos.1459 of 2005 & 472 of 2009 court of Additional District and Sessions Judge, Fast Track, Ad-hoc-II, Kozhikode and accordingly the appellants are acquitted of all the charges levelled against them. The bail bond if any executed by the appellants are stand cancelled and they are set at liberty.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge