Kerala High Court
J.Sarada vs The State Of Kerala on 19 December, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934
CRL.A.No. 742 of 2005 ( )
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SC.983/2000 of ADDITIONAL DISTRICT COURT (ADHOC-II), TRIVANDRUM
CP.41/1999 of J.M.F.C.-I,ATTINGAL
APPELLANT(S)/ACCUSED NO.3::
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J.SARADA,
PLAVILA MALIKAVEEDU, CHATTATHINKARA DESOM,ATINGAL.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENT(S):
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THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SMT. JASMINE.V.H.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-
12-2012, ALONG WITH CRA. NO.S 743 & 744 OF 2005 THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
N.K. Balakrishnan, J.
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Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005
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Dated: 19th day of December 2012
JUDGMENT
The appellant who was one of the accused in Sessions Case No. 983/2000, 976/2000 and 971/2000 challenges the conviction and sentence passed against her for offence punishable under Section 57 A (1) of the Abkari Act. It is alleged that the appellant is the licensee of the three arrack shop Nos. 5, 6 and 7 of Chirayinkeezhu Excise Range. P.W.4, the Excise Inspector, (Excise Mobile Testing Laboratory) along with his party inspected and collected samples from the three godowns of those arrack shops. It was alleged that when P.W.4 inspected the said godown, though as per the stock register the quantity of arrack stored therein was 1250 litres, on actual verification there was 1735 litres of arrack. It was contended by the accused that it included Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:2:- the arrack which was to be sold or stocked in another godown of another licensed shop. On examination of the samples at the spot conducted by Junior Scientific Officer, who was along with P.W.4, methyl alcohol was detected. Hence 3 bottles each were taken from each of the containers. There were altogether 13 containers. Each sample of 180 ml. was taken. 13 samples, one sample each taken from the 13 containers, were entrusted with the 4th accused who was the manager of the godown who was actually present at the site. The remaining two samples each of 13 containers namely; 13x2=26 were taken into custody as per Ext.P1 mahazar. The copy of Ext.P1 mahazar was also given to the 4th accused and acknowledgment was obtained. When the 13 sample bottles were sent to the Chemical Examiners' Laboratory it was certified that the samples contained methyl alcohol, the percentage of which varied from 0. 31% to 0.48% as evidenced by Ext.P3 report, as per which it was also certified that the methyl alcohol is a noxious material injurious to health. Thus, investigation was continued and Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:3:- the final report was filed against the petitioner (A3) and the 4th accused (Manager) and against two other persons alleging offence punishable under Sec. 57 A of Abkari Act.
2. P.W.1 to P.W.5 were examined and Exts. P1 to P7 were marked. The Asst. Excise Commissioner was examined as CW1 and Exts. C1 and C2 were also marked. The 4th accused got himself examined as DW1 and Exts. D1 and D2 were marked. The Court below found that the samples taken from the 13 containers, kept in the godown, of which the petitioner was the licensee, contained methyl alcohol which is a noxious substance injurious to health. The godown was managed by the 4th accused who was actually present at the relevant time in the godown mentioned above. The appellant who was the licensee and the 4th accused (Manager) were found guilty, convicted and sentenced by the court below.
3. P.W.4 the Excise Inspector who collected the sample from the godown in the presence of the Scientific Assistant and P.W.1 and P.W.2 the independent witnesses testified before Court that the samples were collected from Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:4:- the containers which contained in it arrack . The total quantity of arrack found in that godown was 1735 litres. The fact that three samples each were taken from the 13 plastic containers, is supported by the facts noted in the contemporaneous record, Ext.P1 mahazar which was signed by the independent witnesses. The fact that copy of the mahazar was given to A4 the Manager who was present at the time of seizure would vouch for the correctness of the statement given by P.W.4 the Excise Inspector. It is also in evidence that 13 samples; one sample each from 13 containers) were handed over to the 4th accused who was present there. That would support the evidence given by P.W.4 that the sample was taken in the presence of A4 and 13 samples; one sample each, so taken and sealed were handed over to A4 . It is contended by the defence that the 4th accused who was examined as DW1 has denied his signature in Ext.P1 mahazar and he even testified before Court that he was not Sundaresan, S/o. Krishnan, as stated in the mahazar. But the fact remains that one person who held himself out as Sundaresan , S/o, Krishnan who also Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:5:- stated before them that he was the manager of the godown had signed the mahazar for having received the copy of the same and also for having received one set of samples.
4. The crucial question is whether the appellant herein was the licensee of the said shop. The fact that she was not physically present at the time when the samples were taken is no reason to hold that she had no role in stocking or storing of liquor containing methyl alcohol in the said godown of which she was the licensee. The court below accepted the evidence of P.W.4 which was supported by P.W.1 and 5 to hold that the Excise party headed by P.W.4, the Inspector collected samples on 2-3-1989 at about 4.50 p.m..
5. Exts. P5 and P6 are the photocopies of the power- of-attorney and agreement produced by the prosecution. As per the first part of that document "the appointment portion" - (the first paragraph) it was Chandran, S/o. Sivadasan who was appointed as the power-of-attorney whereas at the last portion of Ext. P5 at the "acceptance portion" it is shown that it was Manikandan, S/o.Sivadasan Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:6:- who accepted the appointment. Since there was such a glaring mistake, the original power-of-attorney and agreement were caused to be produced by issuing summons. The Assistant Excise Commissioner who produced the same was examined as a Court - Witness (CW1). The attested photocopies produced by him were separately marked as Ext.C1 and C2, after verifying the same with the originals produced by CW1. It was brought out in evidence that the mistake noted above was subsequently corrected by the Advocate and Notary Public. As such the mistake in the 'appointment portion' and the 'acceptance portion' in the original power-of-attorney had already been corrected. The name and address shown therein is that of the first accused. The contention that subsequent to the case such a certificate was obtained from the Advocate and notary public to suit the prosecution case was rightly turned down by the learned trial Judge.
6. CW1 the Assistant Excise Commissioner has categorically denied the suggestion made by the defence and it was clarified by him that the mistake had to be Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:7:- corrected instead of getting a new power-of -attorney executed since the department cannot replace the original records produced at the time of auction. There is no reason to disbelieve the Court Witness - Assistant Excise Commissioner, who testified regarding that aspect. It was also brought out in evidence that Ext.C2, the original agreement dated 2-4-1998 in respect of shop Nos. 5 to 7 for the period 1988 - 1989 was executed by the first accused Manikandan as the power-of-attorney holder of A2 and A3. It was contended by the defence that the name of the third accused is seen written in the margin of Ext. P6 agreement and so, according to the appellant, it was subsequently incorporated to bolster up the case of the prosecution. But it is pointed out that there is no sufficient space in the printed form as against the relevant column and that was why the name and address of the third accused was written in the margin just adjacent to the relevant column. That explanation offered by the prosecution was rightly accepted by the learned trial Judge.
7. The court below has quoted the relevant portion of Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:8:- Ext. P5/Ext.C1 the power-of-attorney to highlight the purpose for which Ext.P5 the power-of-attorney was executed by A2 and A3 in favour of the first accused. Referring to the relevant clauses in Ext.P5, it was observed by the court below that A1 was given the power only to participate in the auction sale and to do all other actions in connection with said purpose; namely the auction sale and it was pursuant to that right first accused executed Ext. P6 agreement in favour of the Governor of Kerala. That agreement was executed on behalf of A2 and A3.
8. The Court below very much relied upon Ext. P6 agreement executed by A1 on behalf of A2 and A3 which was in respect of Shop Nos. 5, 6 and 7 in Group No. II of Chirayinkeezh Excise Range. It was for the period 1988-
89. It was from the godown of the shops mentioned earlier the samples were collected. It was pointed out that as per Ext.P6 agreement, it is clear that the 2nd and 3rd accused were the licensees of the shop Nos. 5,6, and 7 referred to earlier and that A1 Manikandan signed the agreement on behalf of A2 and the appellant herein (A3) in his capacity Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:9:- as the power-of-attorney of A2 and A3.
9. An attempt was made by the defence in Sessions Case No. 983/2000 which is the subject matter of Crl.A. 742/2005 that the 4th accused was not the person who was present at the time when the godown mentioned therein was searched by P.W.4. But the court below found that the slight difference in the father's name and the house name mentioned by the fourth accused cannot be a reason to say that he was not the person who signed Ext. P1 mahazar. The evidence would show that it was A4 who was present at the time when the search was conducted. The evidence on that point was given by P.W.1 and others. That evidence was accepted by the court below after meticulously analysing the evidence. The contention raised by the prosecution is that if at all there was any slight mistake that must have occurred only because the person who was actually present at the time of inspection namely; the 4th accused, might have given his name, his father's name and house name in a slightly different manner. But the fact remains that he was identified in court also as the person who Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:10:- was actually present at the time of inspection when the sample was taken. Therefore, the contention to the contrary advanced by the accused cannot be sustained.
10. The petitioner was the 3rd accused in Session Case No. 971/2000 which is the subject matter of Crl.Appeal 743/2005 . He was also the 3rd accused in Sessions Case No. 976/2000 which is the subject matter of Crl.Appeal 744/2005. In all these cases, the same contention was advanced by her before the trial court and also before this Court that she was not conducting the business. Ext. P6 the agreement which has been referred to above would clinch the issue that the petitioner was the licensee of the three arrack shop Nos. 5,6 and 7 and that the godowns which were inspected by P.W.4 and others were the godowns of those liquor shops 5,6 and 7. Therefore, the petitioner cannot feign ignorance or plead innocence by stating that she was not the licensee or that she was not having control or domain over the godown or shop Nos. 5,6 and 7.
11. There is no case for the petitioner that she had Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:11:- let out or sub leased the license or licensed premises in favour of somebody else. Not only that the Rules and the Permits do not empower the licensee to transfer the license in favour of another person. Even if any such agreement was entered into that would be hit by Sec. 23 of the Contract Act.
12. It is also argued by the learned counsel for the appellant that there is no evidence to show that the appellant herein had mixed or permitted to mix any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings with any liquor or intoxicating drug. Hence, according to the appellant she cannot be found guilty. That contention is also devoid of any merit. The sample taken from the liquor shop/the godowns of the liquor shops mentioned above were found to be containing methyl alcohol which is a noxious substance as has been certified by the Chemical Examiner.
13. Explanation 2 to Section 57 A makes it clear that the licensee has to take reasonable precaution to Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:12:- prevent the mixing of any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings with any liquor or intoxicating drug. Mere feigning of ignorance cannot come to the rescue of the accused. It is made clear by subsection 5 of Sec. 57A that notwithstanding anything contained in the Indian Evidence Act where a person is prosecuted for an offence under Sub Section 1 or sub section 2, the burden of proving that he has not mixed or permitted to be mixed or as the case may be, omitted to take reasonable precaution to prevent the mixing of, any substance referred to in that sub section with any liquor or intoxicating drug shall be on him. Therefore, the position of law is very clear as has been stated in Section 57 A (5) that it is for the accused to prove that he has not mixed or permitted to be mixed any noxious substance. No such evidence was adduced by the accused.
14. It was also argued by the learned counsel for the appellant that there was delay in production of the properties. But there was no unreasonable delay in Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:13:- production of the property. It is only a case where the samples were collected and sent for chemical examination. Those samples were sent to the chemical examiner without delay. The taking of the sample was immediately reported. Therefore, the contention to the contrary advanced by the learned counsel for the appellant cannot be sustained. It is also important to note that one set of sample was actually given to the fourth accused who was present at the time of inspection. His acknowledgment was obtained for having given to him one set of sample. She (A3) could have requested the Court to have that sample sent for Chemical Examiner, if actually, the accused persons were aggrieved by the report of the Chemical Examiner. That was not done. That also would counter the plea raised by the accused.
15. The learned counsel for the appellant has relied upon the decision of this Court in Roshy v. State of Kerala - 2005 (3) KLT 796 in support of his submission that presumption under Sec. 64 cannot be invoked unless it is proved by cogent evidence, that offence was committed Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:14:- with his knowledge or consent. Section 64 of the Act has no application at all to the case on hand. It is the presumption under Sec. 57 A (5) that is applicable. The relevancy and applicability of sub Section (5) of Sec. 57 A has already be adverted to. When specific provision regarding presumption is available under Sec. 57 A (5) and when the prosecution alleges commission of offence under Sec. 57 A, it is not necessary to dwell on Sec. 64 of the Act. Not only that, Sec. 64 of the Abkari Act does not take in Sec. 57 A. Therefore, the decision in Roshy v. State of Kerala has to be distinguished.
16. No other contention survives for consideration. As such the finding entered by the courts below in all the three cases that the appellant was the licensee of the arrack shop mentioned above and that the samples collected from the arrack was found to have been mixed up with methyl alcohol which is a noxious substance, is well justified. The conviction is to be confirmed in all the three cases.
Since the offence falls under Section 57 A (iii), the Crl.Appeal Nos. 742/2005, 744/2005 and 743/2005 -:15:- appellant is sentenced to simple imprisonment for one year and to pay Rs. 15,000/- (Rupees fifteen thousand only) each and in default of payment of fine the appellant shall undergo simple imprisonment for one year each. The substantive sentence in all the three cases will run concurrently.
Dated this the 19th day of December, 2012.
Sd/-N.K. Balakrishnan, Judge.
ani. /truecopy/
P.S. toJudge