Abdul Jaleel @ Saji @ Anoop s/o Kaniyappan v. Excise Inspector, Vatakara Excise Range Office; State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935 CRL.A.No. 986 of 2003 ( ) -------------------------SC 494/2000 of ADDL.DISTRICT AND SESSIONS COURT, FAST TRACK- ADHOC II, KOZHIKODE APPELLANT(S)/ACCUSED: ------------------------ ABDUL JALEEL @ SAJI @ ANOOP S/O.KANIYAPPAN, PUTHENPARAMBU HOUSE, KANJIRAPPALLY. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S)/COMPLAINANT & STATE: ---------------------------- 1. EXCISE INSPECTOR, VATAKARA EXCISE RANGE OFFICE, VATAKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.986 of 2003** **-------------------------------------Dated this the 29[th] day of January, 2014.** ## **JUDGMENT** Appeal filed under Section 374 of the Code of Criminal Procedure. 2. Appellant is convicted by the learned Additional Sessions Judge, Fast Track - Adhoc-II, Kozhikode in S.C.No.494 of 2000 for offences under Section 55(a) of the Abkari Act (for short, “Act”) and Rule 9 of the Foreign Liquor Rules **(** for short, “Rules”). Prosecution case, shortly stated, is as follows: On 01.09.1997 at 1 O' clock in the night, the appellant was found transporting 20 bottles of Indian Made Foreign Liquor (IMFL), each bottle containing 750 ml. He was travelling in a bus which came from Thalassery side and passed through Mahi. Bus was intercepted at Azhiyur. Prosecution alleged that the appellant is guilty of the said offences. 3. In order to establish the prosecution case, seven witnesses were examined on the side of the prosecution and Exts.P1 to P10 were marked. Defence evidence consists of testimony of DW1 and Exts.D1 and D2. Material Objects 1 and 2 were also marked. 2 Crl.Appeal No.986/2003 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant contended that even if the entire prosecution version is believed, then also no offence is made out. Merely for the reason that a person was apprehended with certain quantity of IMFL, it will not automatically attract the offence under Section 55(a) of the Act. However, in this case there is no admission made by the appellant that he was found in possession with the contraband alleged. PW1 is the preventive officer attached to the Excise Department. He testified that during the night on 01.09.1997, he was in patrol duty on the National Highway. At that time, bus bearing name “Holy Family” with registration No.KL-5E/32 was intercepted. The appellant allegedly was sitting in the extreme back seat almost in the middle. He placed a rexin bag on his lap. On examination of the bag, the Excise party found out 20 bottles IMFL, apiece containing 750 ml. It is the allegation that the bottles did not contain the security label of the Kerala State Beverages Corporation. After completing the formalities, the appellant was apprehended and seizure mahazar was prepared. 6. PW1 was subjected to cross-examination. Defence has projected a case that on the same day another person was apprehended from the same bus. PW1 feigned ignorance in respect of that incident. 3 Crl.Appeal No.986/2003 7. PW2 is another official witness, who participated in the search and seizure. He also did not depose that another person was also apprehended from the same bus on that night. Learned counsel for the appellant relied on Ext.D1, the deposition of PW1 in S.C.No.298 of 2000 on the file of Assistant Sessions Judge **,** Vadakara. The deposition shows that on 01.12.1997 at about 1 O' clock in the night, PW1 apprehended another person from the same bus. But, Ext.D2 judgment in S.C.No.298 of 2000 would show that the alleged incident was on 01.09.1997. Learned Assistant Sessions Judge acquitted the accused in that case on noting the inconsistency in the evidence on the side of the prosecution. Similarly, undue delay in sending the property list with articles to the court has also taken note of. In this case also, Ext.P4 forwarding note shows that the contraband was produced before the court with a property list on 04.12.1997 only. As mentioned earlier, the incident was on 01.09.1997. There is a delay of more than two months in this case. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** considered the effect of undue delay in producing the contraband article before the court. In **Dominic v. State of Kerala (1989 (1) KLT 601)** a learned Single Judge of this Court referring to the various provisions in Excise Manual Vol.II read with Section 36 of the Act took a view that if those provisions are read together, it is clear that seizure of the property should be reported to the 4 Crl.Appeal No.986/2003 court forthwith. Considering the precedents on the point, the Division Bench held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample, which was analyzed in the Chemical Examiner's Laboratory was the same sample drawn from the contraband allegedly found in the possession of the accused. It is further held that in the absence of any satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of the officer, no safe conviction can be entered. In this case, there is no explanation forthwith coming for the undue delay in not producing the sample before the court. Further, no link evidence is produced by the prosecution to show that the article allegedly recovered from the appellant is the same article that is produced in the court. Therefore, I find that on this score the prosecution has to fail. 8. Learned counsel for the appellant contended that in order to attract an offence under Section 55(a) of the Act, the prosecution must prove that there was transit or possession of liquor for the purpose of import or export. In this case, even if we assume that the appellant was found in possession of IMFL, merely for that reason it cannot be said that he committed an offence under Section 55(a) of the Act. Decisions 5 Crl.Appeal No.986/2003 rendered by this Court in **Surendran v. Excise Inspector (2004 (1) KLT 404), Mohanan v. State of Kerala (2007 (1) KLT 845)** and **Josekutty v. State of Kerala (2013 (1) KLT 434)** have been cited to contend a proposition that mere possession is not sufficient to hold that the contraband liquor was imported from another State to the State of Kerala. Even in the testimony of PWs 1 and 2 nothing specifically is mentioned about the alleged import of IMFL by the appellant. It cannot be stated that merely the bus passed through the Union Territory of Mahi and thereafter, the article was allegedly recovered from the possession of the appellant, it cannot be assumed without any evidence that he had imported the liquor so as to attract an offence under Section 55(a) of the Act. 9. Learned counsel for the appellant contended that S.C.No.298 of 2000 before the Assistant Sessions Court, Vadakara ended in acquittal. That is also an incident allegedly occurred on the same day. Considering the fact situations and the similarity in the nature of allegations, it is submitted that this case is also devoid of any merit. I find on analysis of evidence that the appeal is meritorious and is to be allowed. In the result, the appeal is allowed. Judgment of trial court is set aside. Appellant is acquitted of charges under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules in S.C.No.494 of 2000 of the Additional Sessions Court, Fast Track - Adhoc-II, Kozhikode. Crl.Appeal No.986/2003 6 Appellant shall be set free, 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.** **cks** Crl.Appeal No.986/2003 7 ## **A.HARIPRASAD, J.** **Crl.Appeal No.986 of 2003** ## **JUDGMENT** **29[th] January, 2014**