Kerala High Court
Tomy Antony vs State Of Kerala on 27 January, 2025
Crl.Appeal Nos.30 and 32 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 30 OF 2014
AGAINST THE JUDGMENT DATED 10.12.2013 IN SC NO.622 OF
2010 ON THE FILE OF THE SESSIONS COURT, PALAKKAD
APPELLANT/ACCUSED:
TOMY ANTONY
AGED 55 YEARS
S/O.ANTONY,THOPPIL HOUSE,
VYTILA, KANAYANNUR TALUK,
ERNAKULAM
BY ADVS.
SRI.K.ANAND
SRI.N.RAJESH PALAKKAD
SRI.S.SREENATH
RESPONDENT/STATE/COMPLAINANT:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
2 THE EXCISE INSPECTOR
EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL
SUQAD, PALAKKAD-678001
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, ALONG WITH CRL.A.32/2014, THE COURT ON
27.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.30 and 32 of 2014
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2025:KER:5931
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 32 OF 2014
AGAINST THE JUDGMENT DATED 10.12.2013 IN SC NO.622 OF
2010 ON THE FILE OF THE SESSIONS COURT, PALAKKAD
APPELLANT/ACCUSED:
BINU,
AGED 37 YEARS,
S/O.SASIDHARAN, SALM KARODE VEETTIL,
THEKKEKARA, MEENACHIL, KOTTAYAM.
BY ADV SRI.N.K.MOHANLAL
RESPONDENTS/COMPLAINANT:
1 CIRCLE INSPECTOR OF EXCISE,
EXCISE ENFORCEMENT & ANTI NARCOTIC SPECIAL SQUAD,
PALAKKAD EXCISE RANGE OFFICE, PALAKKAD, 678574.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, ALONG WITH CRL.A.30/2014, THE COURT ON
27.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.30 and 32 of 2014
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2025:KER:5931
C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal Nos.30 and 32 of 2014
---------------------------------------------
Dated this the 27th day of January 2025
JUDGMENT
In these appeals filed under Section 374(2) Cr.P.C. the appellants who are accused no.1 and 2 in S.C.No.622/2010 on the file of the Court of Session, Palakkad, challenge the conviction entered and sentence passed against them for the offence punishable under Section 55(a) of the Kerala Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 25/06/2008 at about 10:00 a.m. at Walayar check post in Coimbatore - Palakkad National Highway situated in Puthussery East Village, Palakkad Taluk, accused no.1 (A1) was found in possession and transporting 6080 litres of rectified spirit in a tanker lorry bearing a fake registration number TN-69-K-4618. Accused no.2 (A2) was the owner of the tanker lorry. Accused no.3 (A3) had Crl.Appeal Nos.30 and 32 of 2014 4 2025:KER:5931 procured the rectified spirit and accused no.4 to 6 (A4 to A6) actively aided and gave all assistance to A1 in the smooth import and transportation of the contraband through the check post. All the accused persons were alleged to have acted in furtherance of their common intention of transporting the contraband and hence as per the final report, they were alleged to have committed the offence punishable under Section 55(a) of the Act.
3. PW10, the Excise Inspector, Excise Check Post, Walayar is the Detecting Officer who arrested A1 and produced the accused; the vehicle containing the contraband and the documents prepared contemporaneously before PW19, Excise Range Inspector, Palakkad, who registered crime no.27/2008, Excise Enforcement and Anti Narcotic Special Squad, Palakkad based on which Ext.P26 crime and occurrence report was prepared. Investigation was conducted by PW19, CW25 and PW18. The investigation was completed by PW20, who submitted the charge sheet against six accused persons alleging the commission of the offence punishable under the aforementioned section.
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4. On appearance of all the accused persons, the jurisdictional magistrate after complying with all the formalities contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Palakkad, which court took the case on file as S.C.No.622/2010. The case was made over to the Additional District and Sessions Judge-III, Palakkad for trial and disposal. On 12/11/2012, a charge under Section 55(a) of the Act was framed, read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution PW1 to PW20 were examined and Exts.P1 to P35 and M.O.1 series to MO.4 were got marked in support of the case. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to Crl.Appeal Nos.30 and 32 of 2014 6 2025:KER:5931 enter on their defence and adduce evidence in support thereof. DW1 was examined and Ext.D1 was marked on behalf of the accused persons.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence against accused nos.3 to 6 and hence acquitted them under Section 235(1) Cr.P.C. for the offence punishable under Section 55(a) of the Act. However, accused nos.1 and 2 were found guilty of the offence punishable under Section 55(a) of the Act and hence they have been convicted to rigorous imprisonment for three years and to a fine of ₹1,00,000/- and in default to simple imprisonment for six months. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, accused nos.1 and 2 have come up in appeal.
8. The only point that arises for consideration in these appeals are whether the conviction entered and sentence passed against the appellants/accused nos.1 and 2 by the trial court are sustainable or not.
9. Heard both sides.
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10. It was submitted by the learned counsel for the appellants/accused persons that there has been a blatant violation of the mandatory provisions contemplated under Section 53A of the Act and hence the trial court ought to have acquitted the accused persons. However, the trial court on a complete mis- appreciation of the evidence on record and the law on the point, grossly erred in convicting the accused persons. Hence the argument is that the impugned judgment is liable to be reversed. In support of the argument, reference was made to the dictums in Lalitha v. State of Kerala, 2012 (1) KLT 550; Rajamma v. State of Kerala, 2014 (1) KLJ 624; M.Narayanan v. State of Kerala, MANU/KE/1324/2020; Balakrishna Rai v. State of Kerala, 2020 (3) KLJ 240; Anilkumar v. State of Kerala, 2020 (3) KLJ 512; Suresh v. State of Kerala, 2020 (3) KLJ 766 and Diwakar v. State of Himachal Pradesh, 2020 ICO 1212.
10.1. Per contra, it was argued by the learned public prosecutor that there has been substantial compliance of all the mandatory provisions and hence the impugned judgment calls for no interference.
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11. As noticed earlier, PW10, the then Excise Inspector, Excise check post, Walayar, is the detecting officer. PW12, the preventive officer is the officer who is alleged to have been present along with PW10 when the offence was detected; the accused arrested and the contraband seized. PW10 when examined deposed that on 25/06/2008 while he was on check post duty, in the morning by about 07:00 a.m. a tanker lorry bearing registration no.TN-69-R-4618 was seen coming from Coimbatore through the green channel and reached in front of the Excise check post. On enquiry with the driver, that is, A1, about the contents on the lorry, he replied that it was empty. However, not satisfied with the reply of A1, PW10 decided to inspect the vehicle. When A1 was directed to open the tank, he became perplexed and tried to take to his heels. A1 was restrained by CW3, an Excise Guard and thereafter in the presence of independent witnesses and other Excise officials, A1 was questioned and then he disclosed that the tanker lorry contained rectified spirit. On inspecting the vehicle, 190 plastic cans/jars having capacity of 35 liters were found to contain some liquid. On Crl.Appeal Nos.30 and 32 of 2014 9 2025:KER:5931 tasting and smelling the contents, it was found that the same was rectified spirit. A1 on questioning admitted that he had no license or permit to possess, import or transport such quantity of spirit. Therefore, he was arrested on the spot and Ext.P1 arrest memo prepared. On searching the cabin of the lorry, a file was seen which contained registration certificate, tax card, national permit, insurance certificate, etc. The seized cans/jars were numbered as 1 to 190 consecutively and sample was drawn from the cans/jars which were numbered as 25, 75, 125 and 175. The sample bottles were tightly closed, tied, sealed and labelled, which label contained a brief history of the case, the name and signature of PW10, the witnesses and the signature of A1. All the cans/jars seized were also sealed and labelled. Ext.P8 is the detailed mahazar prepared at the time of seizure. Thereafter, he along with A1, the lorry, the contraband articles and the documents prepared contemporaneously were produced before PW19 for necessary follow up action. The file with the documents found in the cabin of the lorry was marked as Ext.P9 series. PW10 identified A1 in the box.
Crl.Appeal Nos.30 and 32 of 2014 10 2025:KER:5931 11.1. PW12, Preventive Officer, Walayar check post supports the prosecution case and deposed in tune with the testimony of PW10. PW8 and PW9, the independent witnesses and attestors to Ext.P8 seizure mahazar, turned hostile and deposed that they had neither seen the incident nor stated to the Excise Inspector that they had seen the incident. PW9 even went to the extent of denying his signature in Ext.P8 mahazar.
11.2. A2 is alleged to be the owner of the tanker lorry in which the contraband was transported. A2 is alleged to have purchased the vehicle from PW16, who when examined supported the prosecution case. PW16 identified A2 in the box and deposed that he had sold the lorry to A2. Though the lorry was purchased by A2, the registration stands in the name of PW17, who in turn deposed that he had never purchased any vehicle in his name, for which he did not have the financial resources also. PW17 deposed that he had lost his purse in a pick pocketing incident, at which time his purse contained his driving license also. He got back the driving license after about two weeks. He had not entrusted his documents to any person. However, he deposed that he is Crl.Appeal Nos.30 and 32 of 2014 11 2025:KER:5931 acquainted with one Raju and that he had given his driving license to the said person for taking a xerox copy. PW17 also deposed that he has neither purchased a vehicle nor is he aware that any vehicle has been purchased in his name.
12. The prosecution relies on the testimony of PW10 and PW12 to prove the case. As noticed earlier, the independent witnesses have turned hostile. It is true that merely because the independent witnesses have turned hostile is no ground to reject the prosecution case provided their testimony is credible and trustworthy. So I will examine whether the testimony of PW10 and PW12 is sufficient to prove the case beyond reasonable doubt against the accused persons. PW10 as well as PW12 deposed that after the vehicle containing the contraband had been seized, sampling was done by PW10. PW19 who registered the crime, deposed that he had produced the cans/jars containing the residue spirit after drawing sample as well as the other cans/jars before the Deputy Excise Commissioner for initiating proceedings under Section 53A of the Act.
13. Here it would be apposite to refer to Section Crl.Appeal Nos.30 and 32 of 2014 12 2025:KER:5931 53A, which reads thus -
"53A. Disposal of seized liquor, intoxicating drugs or articles.- (1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, its vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after its seizure, be disposed of by the authorised officer referred to in section 67B, in such manner as the Government may, from time to time determine after following the procedure hereinafter specified. (1.1.2) Where any such notified liquor, intoxicating drug or article has been seized under this Act, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article in any proceedings under this Act and make an application to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles or stored for the purpose of,-
(a) certifying the correctness of the inventory so Crl.Appeal Nos.30 and 32 of 2014 13 2025:KER:5931 prepared; or
(b) taking, in the presence of such Magistrate, Photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or
(c) allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-
section (2) the Magistrate shall, as soon as may be, visit the place where such liquor, intoxicating drug or articles are stored and take appropriate steps as specified in clauses (a), (b) and (c) of sub-section (2), and allow the application.
(4) Where any liquor or intoxicating drug or article under this Act has been kept under the custody of any court in connection with any offence committed under this Act, before the commencement of the Abkari (Amendment) Act, 2003 or has been brought before a Magistrate without complying the procedure laid down in sub-section (2), the authorised officer shall obtain prior permission of the Court or Magistrate before initiating proceedings under sub-section (2).
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any Court trying an offence under this Act, shall Crl.Appeal Nos.30 and 32 of 2014 14 2025:KER:5931 treat the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub sections (2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence."
14. As held by a learned Single Judge of this Court in M.Narayanan (Supra), Section 53A comes into play when the contraband seized under the Act has to be disposed of by the authorised officer immediately after its seizure. The authorised officer shall prepare an inventory of such contraband which shall contain the necessary details which are relevant to identify the liquor in any proceedings under the Act. The authorised officer has to make an application to the magistrate concerned for the following purposes, namely - (a) certifying the correctness of the inventory so prepared ; or (b) taking photographs of the liquor in the presence of the Magistrate and to certify such photographs as true ; or (c) to allow drawing of representative samples of the liquor in the presence of the magistrate and to certifying the correctness of any list of samples so drawn. Sub-section (5) of Section 53A says that the certificate so issued by the magistrate Crl.Appeal Nos.30 and 32 of 2014 15 2025:KER:5931 shall be treated as primary evidence during the trial in respect of the evidence. The very purpose of the provisions contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorised officer and the magistrate follow the mandate under Section 53A of the Act strictly and scrupulously, it is not necessary for the prosecution to produce the bulk quantity of seized material before the court during the trial of the case and mark it as a material object. Then the certificate issued by the Magistrate in respect of the inventory of liquor and the list of samples drawn in his/her presence shall be treated by the court as primary evidence of the offence. However, when the procedure under Section 53A of the Act is not adopted and strictly followed and when the bulk quantity of liquor is not produced and when no evidence is also adduced to show that a bulk quantity of contraband has been destroyed, then the seizure of such liquor would become a doubtful matter. In such cases the accused would be entitled to take advantage of such doubt.
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15. Ext.P35 is stated to be the certification made by the Magistrate concerned regarding the correctness of the articles produced before him. It would be apposite to refer to Ext.P35 which reads thus -
" PROCEEDINGS OF THE JUDICIAL 1ST CLASS MAGISTRATE - I, PALAKKAD.
Present:- ..................................... Judicial First Class Magistrate -I, Palakkad. Crl. Justice- Crime Nos.21/04, 23/04, 1/06, 24/07, 28/07, 29/07, 26/08, 27/08 of Excise Range Office, Palakkad - disposal of spirit seized-certification of inventory - orders issued - Regarding.
------------------------------------------------------------------------------- Ref :- Report dated 17-10-2008 of the Asst.Excise Commissioner Palakkad.
Order No.6984/08 of Judicial First Class Magistrate - I, Palakkad dated 18-11-2008.
------------------------------------------------------------------------------
I have physically verified the properties involved in the following crime numbers of Excise Range Office, Palakkad which produced before this court on 14-11-08 at 4 P.M. The Junior Superintendent and property section Clerk of this court assisted me in verifying the properties and I certify that.
The following numbers of sealed and labelled plastic cans are there against the crime numbers noted below.
Sl. Cr.No Item No. No. of cans No.of cans No.of
No. . seized found empty cans
containing found
illicit spirit.
1 21/04 304/04 351 98 253
2 23/04 328/04 276 249 27
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3 1/06 4/06 300 177 123
4 24/07 199/07 30 30 -
5 28/07 255/07 146 90 56
6 29/07 270/07 18 10 8
7 26/08 156/08 382 374 8
8 27/08 167/08 190 188 2
The cans and spirit handed over to the Assistant Excise Commissioner, Palakkad to conduct steps for auction.
Judl. First Class Magistrate, Palakkad.
To The Asst. Excise Commissioner, Palakkad. Copy to:-
The Excise Range Officer, Palakkad."
16. As noticed earlier, in the instant case the testimony of PW10 would show that 190 cans having a capacity of 35 ltrs containing 32 ltrs each of rectified spirit had been seized. The said cans were given numbers from 1 to 190 and from cans bearing numbers 25, 75, 125 and 175, samples were drawn. Thereafter, the sample bottles and all the 190 cans were sealed and labelled. The sample bottles; the 4 cans from which samples were taken as well as the remaining 186 cans containing rectified spirit were produced before the jurisdictional Magistrate Crl.Appeal Nos.30 and 32 of 2014 18 2025:KER:5931 as per Ext.P28 property list which was received by the court on 26/06/2008. The samples were forwarded for chemical analysis as per Ext.P29 forwarding note and Ext.P34 is the chemical analysis report relating to the aforesaid samples. The inventory that is alleged to have been prepared by the authorised officer is not before this Court. Ext.P35 does not reveal the details of the contraband articles that are alleged to have been inspected by the learned magistrate. The contraband articles in eight different crimes are stated to have been inspected together and Ext.P35 issued. Ext.P35 apparently and obviously is not in compliance with the provisions contained in Section 53A of the Act.
17. Here it needs to be noted that substantial quantity of rectified spirit had been seized. But due to the omissions and commissions of the officials concerned, the culprits will go scot-free. As there has neither been strict nor substantial compliance of the provisions of Section 53A, Ext.P35 cannot be treated as primary evidence as contemplated under sub-section (5) of Section 53A. When the case of seizure itself fails or is doubtful, the benefit of doubt will have to go to the accused Crl.Appeal Nos.30 and 32 of 2014 19 2025:KER:5931 persons. That being the position, the findings of the trial court regarding the guilt of the accused persons are not tenable and so are liable to be interfered with and hence I do so.
In the result, the appeals are allowed. The conviction and sentence imposed against the appellants by the trial court by the impugned judgment for the offence punishable under Section 55(a) of the Abkari Act is set aside. The accused persons are acquitted under Section 235(1) Cr.P.C. They are set at liberty and their bail bonds shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms