Arimana Joy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938** ## **CRL.REV.PET.NO. 3340 OF 2004 (B)** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.29/1999 OF SESSIONS COURT (ADHOC), THALASSERY DATED 28.08.2004** **AGAINST THE JUDGMENT IN CC NO.66/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA DATED 19.12.1998** **--------------------------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **---------------------------------------------------------------------** **ARIMANA JOY, AGED 32 YEARS, S/O.JOHN, KANICHAR AMSOM DESOM, KOTTIYOOR, KANNUT DIST.** **BY ADVS.SRI.P.P.RAMACHANDRAN SRI.SHEJI P.ABRAHAM** **RESPONDENT(S)/COMPLAINANT::** **----------------------------------------------** **STATE OF KERALA, (EXCISE INSPECTOR, PERAVOOR), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.3340 of 2004 --------------------------------Dated this the 22[nd] day of June, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.29 of 1999 of the Additional Sessions Judge, (Adhoc-I), Thalassery. He was charge sheeted in C.C. No.66 of 1997 by the Judicial First Class Magistrate, Kuthuparamba for the offence punishable under Sec.55(a) of the Abkari Act. The learned Magistrate convicted the accused under Sec.55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for nine months and fine of Rs.25,000/- (Rupees twenty five thousand only), in default of payment of fine, rigorous imprisonment for six months. Against that conviction, accused preferred the above Criminal Appeal before the Additional Sessions Judge, Thalassery, where the learned Additional Sessions Judge confirmed the conviction and modified the sentence as rigorous imprisonment for six months and fine of Rs.25,000/- (Rupees twenty five Crl. R.P. No.3340 of 2004 2 thousand only) in default of payment of fine, rigorous imprisonment for one month. Being aggrieved by that, accused preferred this revision petition. 2. The facts necessary for the indictment were that on 04.05.1996 at 10.30 p.m., the accused was found in possession of 40 packets of Karantaka made arrack, each containing 100 m.l., on the road leading to Madapurachal, Manathana Amsom, Thalassery taluk. The Excise Inspector, Peravoor range seized the arrack and filed a case in the trial court. In pursuance of trial PW1 to PW3 were examined and Exts.P1 to P5 were marked as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Learned counsel appearing for the revision petitioner contended that there is no allegation that the revision petitioner was in possession of liquor in contravention of the Act or Rule made thereunder. That Crl. R.P. No.3340 of 2004 3 possession was not in the course of import or export as provided under Sec.55(a) of the Act or not with knowledge as stated under Sec.58 of the Act. 4. The learned Public Prosecutor submitted that after prohibition of arrack there was no vacuum with regard to the possession of arrack till commencement of new law on 03.06.1997. 5. Between 29.03.1996 and 03.06.1997, no specific punishment was provided for possession of arrack under the Abkari Act, but the accused was convicted under Sec.55(a) of the Abkari Act. Sec.55(a) of the Abkari Act reads as follows: 55. 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 possess] liquor or any intoxicating drug; or The ingredients of an offence under Sec.55(a) is import, export, transport, transit or possess liquor or any intoxicating drug, in contravention of the Act or any rule or order made under the Act. Prohibition of arrack came into force by notification and the Government have Crl. R.P. No.3340 of 2004 4 decided to abolish all arrack shops in the State from 01.04.1996. As per G.O. (MS) No.26/96/TD dated 14.02.1996, the Government have announced the new excise policy for the year 1996-1997. Necessary amendments were made in the Abkari Act with effect from 03.06.1997 and a corresponding notification was issued to achieve the above object. Before amendment, 'liquor' under Sec.3(10) includes spirit of wine, arrack, spirit, wine, toddy, bear and all liquor consisting of and containing alcohol. But that word “arrack” in Sec.3(10) was substituted for the word “methylated spirit” by Sec.2(c) of Act 4 of 1996. Therefore, in such a situation what is the legal impact of such possession of arrack is not mentioned in the Act. 6. A Division Bench of this court in **Josekutty** **v. State of Kerala [2013 (1) KLT 434]** discussed the impact of the possession of arrack in paragraphs 7 and 8 which read as follows: 7. The charge against the petitioner was under Sec.55(a). Ingredients of an offence under S.55(a) was import, export, transport, transit or possess liquor or any intoxicating drug, Crl. R.P. No.3340 of 2004 5 in contravention of the Act or any rule or order made under the Act. The allegation as against the petitioner is limited to possession of illicit liquor in contravention of the Act or rule or order made under the Act. That possession contemplated under Sec.55, though must be in the course of import or export, possession need not be with the knowledge, as is the case with S.58. Consequently, in the charge framed against the petitioner, there is no allegation that petitioner has been in possession of the liquor with the knowledge that it was illegally manufactured. Question is whether in the absence of a positive allegation that petitioner was possessing illicit liquor knowing that it was unlawfully manufactured, an offence under S.58 is attracted. Though S.64 of the Act provides for the presumption to be drawn, before S.58 along with Ss.55B, 56A, 57, 58A and 58B were inserted, by the Act 16 of 1997 w.e.f. 3.6.1997, presumption cannot be drawn in respect of the offence under S.58, by re-course to S.64 of the Act. Therefore, fact that an accused has been in possession of the illicit liquor by itself is not sufficient. Possession must be knowing that it has been unlawfully manufactured. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession “ with the knowledge that it has been unlawfully manufactured”, S.58 cannot be attracted. Division Bench in **Surendran v. Excise Inspector [2004 (1) KLT 404]** considered this aspect, in paragraph 12 and held: “Learned counsel appearing for the petitioner has specifically stated before us that there was not even a suggestion that petitioner was aware of the fact that it had Crl. R.P. No.3340 of 2004 6 been illegally imported or manufactured or that duty etc. has not been paid. Thus it appears that even the ingredients of S.58 are not satisfied.” When S.58 mandates that to attract the offence, the person has to be in his possession of any quantity of liquor or any intoxicating drug “knowing the same have been unlawfully imported, transported or manufactured”. In the absence of a specific allegation in the complaint/final report, that petitioner has been in possession of liquor, knowing that, it was unlawfully manufactured, she cannot be convicted for the offence under S.58 of the Abkari Act. That exactly is the case herein. Except stating that in contravention of the Act petitioner was found in possession of illicit arrack, there is no allegation in the charge that petitioner has been in possession of liquor, with the knowledge that it was unlawfully manufactured. Allegation that is illicit liquor by itself will not attract an offence under S.58, in the absence of a case that petitioner was aware that it is unlawfully manufactured. There may be a case where 'A' entrust a can to 'B' and it was seized from the possession of 'B'. 'B' may not be aware the contents of the can. 'B' is unaware of the fact that the can contains unlawfully manufactured liquor. Can 'B' be prosecuted for the offence under S.58, in the absence of an allegation that 'B' has been in possession of the can containing unlawfully manufactured liquor, with the knowledge that it contained unlawfully manufactured liquor. If presumption under S.64 could be drawn, definitely 'B' could be prosecuted. But in a case where S.64 has no application, as in this case as S.64 then stood in the absence of a specific case that 'B' has been in possession of the can containing liquor with the knowledge that it is ## Crl. R.P. No.3340 of 2004 7 unlawfully manufactured, he cannot be prosecuted for the offence under S.58. That exactly is the case herein. Prosecution cannot depend on the defence to be taken by the accused and based on the weakness of the defence case, an accused cannot be convicted for the offence. It is upto the prosecution to allege that petitioner has been in possession of MO1 can containing illicit arrack, with the knowledge that it was unlawfully manufactured. When there is no allegation in the complaint and neither PW 1 nor PW 2 had given evidence that petitioner has been in possession of MO1 can with the knowledge that it contained unlawfully manufactured liquor, she cannot be convicted for the offence under S.58 of Abkari Act. 8. But still petitioner is liable to be convicted as provided under S.63 of the Act. S.63 provides that whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act and not otherwise provided for in the Act shall, on conviction be punished for each such willful act or omission with fine which at the time was of commission of the offence may extend to rupees two thousand. By Act 4 of 1996 which came into force on 27.3.1996, after clause 6 of S.3, clause 6A was inserted defining defining arrack. S.8 was also inserted providing prohibition of manufacture, import, export, transport, transit, possession, storage and sale of arrack. Under S.8, no person shall manufacture or import, export, transport, transit, possess, storage, distribute, bottle or sell arrack in any form. Therefore, by virtue of S.8 there is a prohibition for possessing arrack in any form came into force w.e.f. 27.3.1996. It was only by amendment Act 16 of 1997, which came into effect on Crl. R.P. No.3340 of 2004 8 3.6.1997 subs.(2) of S.8 was inserted after renumbering original S.8 as sub-s.(1) of S.8 providing punishment for contravention of sub-s.(1) of S.8. Therefore, before 3.6.1997, no specific punishment was provided for contravention of the provisions of S.8 as it then stood. Possession of illicit arrack was on 19.05.1997. In such circumstances, petitioner could only be convicted and sentenced as provided under S.63 of the Abkari Act.” 7. The allegation in this case is that the revision petitioner was found in possession of 4 litres of arrack and PW1 seized that arrack after preparing Ext.P1 mahazar. Independent witnesses PW2 and PW3 attested Ext.P1. Reaching at the Excise office, PW1 registered Ext.P2 occurrence report. Subsequently, the seized articles were produced before the court. The sample taken was forwarded to chemical examiner's lab and Ext.P4 is the requisition and Ext.P5 is the chemical analysis report. Ethyl alcohol was detected in the sample. Trial Court marked the balance arrack and the plastic bag as MO1 and MO2. Analysing the oral evidence, the trial court framed an opinion that the accused committed the offence punishable under Sec.55(a) of the Abkari Act. Crl. R.P. No.3340 of 2004 9 But that finding is unsustainable in law in view of the decision of the Division Bench in Josekutty (Supra). 8. After amendment, manufacture, import, export, transport, transit, possession, storage, sale of arrack is an offence under Sec.8 of the Abkari Act which reads as follows: 8(1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack- No person shall manufacture, import, export, transport, [without permit transit], possess, store, distribute, bottle or sell arrack in any form. (2) If any person contravenes any provisions of subsection (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.] Section 8 was omitted by Act 10 of 1967 and again inserted by Act 10 of 1996. By Act 16 of 1997, S.8 was renumbered as sub section 1 of that section and sub section 2 inserted therein. This court in **Gopan v. State of Kerala [2007 (3) KLT 443]** held that mere possession of arrack without any authority would only attract S.8 of the Abkari Act and not S.58. 9. It is found that possession of liquor knowing Crl. R.P. No.3340 of 2004 10 the same unlawfully imported, transported or manufactured is an offence punishable under Sec.58 of the Abkari Act. Sec.58 of the Abkari Act reads as follows: 58. For possession of illicit liquor- whoever, without lawful authority, has in 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 this Act] not to have been paid therefore, [ shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh]. When a person is charge sheeted under Sec.58 of the Abkari Act, the prosecution has to prove that the accused was in possession of illicit liquor knowing the same to have been unlawfully imported, transported, manufactured or knowing the duty, tax or rental payable under the Act not have been paid. When there is no averment in the complaint or during the recording of the evidence, no allegation that the revision petitioner had knowledge about the illicit liquor, a prosecution under Sec.58 is unsustainable. When there was no specific punishment provided in contravention of the possession Crl. R.P. No.3340 of 2004 11 of arrack before 03.06.1997, in view of the decision in Josekutty (Supra), the possession of arrack would amount to an offence under Sec.63 of the Abkari Act. 7. In the result, conviction under Sec.55(a) of the Abkari Act is set aside. Revision Petitioner is convicted under Sec.63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only) in default of payment of fine, simple imprisonment for three months. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence. Revision petition is disposed of accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/23/06/2016 P.A. To Judge