## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA**
**TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938**
## **CRL.A.No. 414 of 2011 ( )**
**-------------------------SC.NO. 64/2010 OF ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-II, KOTTAYAM ------------------**
**APPELLANT/ACCUSED NO.1 :**
**-------------------------------------------**
**BABUKUTTAN, S/O.RAJAPPAN NAIR, CHENGALATHIL HOUSE, CHENNAPLAVE BHAGAM, ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.**
**BY ADVS.SRI.K.B.ARUNKUMAR SRI.D.SRIKUMAR**
## **RESPONDENT/COMPLAINANT :**
**-----------------------------------------------**
**STATE OF KERALA REPRESENTED BY THE EXCISE RANGE INSPECTOR, KANJIRAPPALLY EXCISE RANGE OFFICE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SMT. S. HYMA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mn**
## **B. KEMAL PASHA, J.**
````````````````````````````````````````````````````````````` Crl. Appeal No.414 of 2011 ````````````````````````````````````````````````````````````` _Dated this the 31[st] day of May, 2016_
## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
Appellant is the 1[st] accused in SC No.64/2010 of the Additional Sessions Court, Adhoc-II, Kottayam, who stands convicted for the offences under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay fine of ₹1 lakh, in default to undergo rigorous imprisonment for six more months for the offence under Section 8(2) of the Abkari Act.
2. The prosecution case is that on 15.01.2003 at 6.20 p.m. the appellant, along with the other accused, was found engaged in the preparation of wash for brewing arrack and the appellant was found holding a can containing
Crl.A.414/2011
: 2 :
35 litres of arrack. On seeing the excise party, the other persons, who were present at the spot, ran away from the spot and escaped through the forest. The appellant alone, who was holding the can containing 35 litres of arrack, was apprehended and he was placed under arrest. Through Ext.P1 seizure mahazar, the arrack contained in the can and 1465 litres of wash were seized. 15 samples from the wash contained in different containers and one sample of 300 ml. from the arrack were drawn.
3. PW1, Excise Inspector, detected the offence, took the material objects, samples, records and the accused to the Excise Range Office and registered CR No.3/2003 under Sections 55(a), 55(g) and 8(1) and (2) of the Abkari Act through Ext.P3 crime and occurrence report. The properties were produced before court along with the accused on the next day. Ext.P4 is the property list. He filed Ext.P5 forwarding note. PW3 followed by PW4 conducted the investigation. PW4 completed the
Crl.A.414/2011
: 3 :
investigation and on getting Ext.P9 certificate of chemical analysis, filed the complaint.
4. On the side of the prosecution, PWs 1 to 4 were examined, Exts.P1 to P9 were marked and MOs 1 to 9 were identified. No defence evidence was adduced. The court below found the accused guilty of the offences under Sections 55(a) and 8(2) of the Abkari Act. At the same time, the court below has imposed the sentence to the accused for the offence under Section 8(2) of the Abkari Act only. It seems that the court below has not considered the offence under Section 55(g) of the Abkari Act.
5. Heard learned counsel for the appellant and learned Public Prosecutor.
6. According to the learned counsel for the appellant, there is no sufficient evidence in this case to convict the accused for the offences under Sections 55(a) and 8(2) of the Abkari Act. According to the learned counsel for the appellant, the sample seal was not provided in the
Crl.A.414/2011
: 4 :
copy of the forwarding note. It is argued that there is no sufficient evidence to find that Ext.P9 certificate is in respect of the sample allegedly drawn from the contraband involved in this case. It has been further argued that the bottles in which the samples were taken were not separately sealed; whereas, all the bottles were put in a cover and the said cover alone was sealed.
7. Ext.P9 certificate of chemical analysis clearly shows that all the bottles were sealed and the said seals were intact. It further shows that all the seals tallied with the sample seal provided. The contents of Ext.P9 is not under challenge. There is absolutely nothing to suspect that the bottles were not sealed. All the sealed bottles containing samples were produced before court, from where it was forwarded to the laboratory along with the original of the forwarding note. Those bottles were placed in a cover from the court and the cover was sealed from the court. There is absolutely no illegality or irregularity in the said procedure.
Crl.A.414/2011
: 5 :
When Ext.P9 clearly reveals that the seals on the bottles were intact and it tallied with the sample seal provided, it is evident that the forwarding note contained the seal.
8. This is a case wherein a huge quantity of arrack and a huge quantity of wash were seized. Even though wash is involved, the court below has not entered a finding with regard to Section 55(g) of the Abkari Act. Wash along with other materials were seized from the spot, which clearly means that it could invite an offence under Section 55(g) of the Abkari Act. Whatever it is, there is no conviction under Section 55(g) of the Abkari Act.
9. Regarding the offence under Section 55(a) of the Abkari Act, it seems that there was no illegal import, illegal export or illegal transport in the case. There is nothing to show that the arrack involved was possessed by the appellant in the course of any such illegal import, illegal export or illegal transport. Matters being so, going by the decisions of the Division Benches of this Court in
Crl.A.414/2011
: 6 :
_**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]_ , an offence under Section 55(a) of the Abkari Act cannot be made out in this case. Therefore, the conviction passed by the court below for the offence under Section 55(a) of the Abkari Act is liable to be set aside. The court below has not imposed any sentence for the offence under Section 55(a) of the Abkari act.
10. Regarding the conviction under Section 8(2) of the Abkari Act, there is absolutely nothing to interfere with the said conviction. There is nothing to show that the arrack involved is not a potable liquor. PW1 has tasted the arrack and smelled it. When an experienced Excise Inspector attached to the Excise Department has stated that it is arrack from tasting and smelling it and further, when it is established through Ext.P9 certificate of chemical analysis that it contained 33.25% by volume of ethyl alcohol, it has to
Crl.A.414/2011
: 7 :
be noted that it conforms to the definition of arrack contained in Section 3(6A) of the Abkari Act. Matters being so, the conviction passed by the court below for the offence under Section 8(2) of the Abkari Act is only to be conformed.
11. Regarding sentence also, considering the huge quantity of contraband involved in this case and especially when a huge quantity of wash was also involved, which escaped the notice of the court below, this Court is of the view that the sentence imposed by the court below is also not liable to be interfered with. This Criminal Appeal is devoid of merits and is only to be dismissed, and I do so. In the result, this Criminal Appeal is dismissed.
Sd/-
**(B.KEMAL PASHA, JUDGE)**
aks/31/05
_// True Copy //_
_PA to Judge_
