Benny @ Joseph v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933** **CRL.A.No. 1859 of 2004(C)** **-------------------------** **SC.370/2002 OF THE ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE** **....................** **APPELLANT/ACCUSED:** **--------------** **BENNY @ JOSEPH, S/O.M.J.ANTONY, KARIPPALLAPARAMBATH, CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK.** **BY ADV. SMT.LATHA PRABHAKARAN** **RESPONDENT/COMPLAINANT:** **---------------** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, FEROKE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR, SRI.S.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. -------------------------------Crl.A.No.1859 OF 2004 --------------------------------Dated this the 10[th ] day of November, 2011** ## **O R D E R ~~~~~~~** Appellant was convicted by the Additional Sessions Judge, Fast Track (Adhoc II), Kozhikode in S.C.No.370/2002 for offence under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquour Rules and sentenced to rigorous imprisonment for 1 ½ years with a fine of Rs. One lakh under Section 55(a) of the Abkari Act. No separate sentence was awarded under Rule 9. Assailing the above conviction and sentence, this appeal is preferred. 2. I have heard Smt.Latha Prabhakaran, the learned counsel appearing for the appellant and the learned Government pleader. 3. The facts leading to the case is that at 6.p.m., on 30.8.2000, while PW1, the Excise Inspector attached to the Feroke Excise Range, along with PW2, a Preventive Officer and others moving on patrol duty found the appellant standing on Crl.A.No.1859/2004. 2 the road margin in front of Meenchanda Co-operative Urban Bank near Ramanattukara Byepass Junction along KozhikodeRamanatukara main road in Panniyankara amsom, meenchanda desom. The appellant was carrying a plastic bag which was marked as MO4. Seeing PW1 and party, the appellant attempted to hide MO4. Being got suspicious, PWs 1 and 2 along with other officials approached the appellant and on examination, it was found that inside MO4 there were three bottles of 750 ml capacity with Aristocrat brandy and one bottle of XXX Victoria Rum . PWs 1 and 2 got one of the brandy bottles and the Rum bottle opened. The contents therein were tested by smell and taste and satisfied that bottles contained nothing but Brandy and Rum. The brandy bottles were having sticker that it could be sold only in Pondicherry. Since the appellant had no licence to transport the liquor from Pondicherry, the appellant was arrested and the bottles along with MO4 were seized. MOs 1, 2 and 3 are the liquor bottles. From the brandy bottle and rum bottle, 180 ml was taken as sample. The appellant was arrested for which Ext.P1 arrest memo was prepared. For seizure of MOs 1 to 4 Ext.P2 seizure mahazar was prepared. Returning to the Crl.A.No.1859/2004. 3 office, a case was registered for which Ext.P3 occurrence report was prepared. The appellant along with the thondy articles and the sample bottles was produced before the Magistrate on the next day along with Ext.P4 remand report and Ext.P5 property list. The sample bottles were forwarded to the Chemical Examiner along with Ext.P6 forwarding note. After examination, Ext.P7 report of the Chemical Examiner was obtained. In Ext.P7, it was reported that the samples contained 36.16% and 43.22% Ethyl Alcohol by volume. The investigation was conducted by PW4 another Excise Inspector, who after completing the investigation, submitted a charge sheet before the local Magistrate. The offence being triable by a court of session, the case was committed to the court of session, Kozhikode from where it was made over to the Additional Sessions Judge. 4. The appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P8 and MOs 1 to 4 were marked. The appellant took a defence of total denial. When called upon to Crl.A.No.1859/2004. 4 enter his defence, his wife was examined as DW1 and he was examined as DW2. Ext.D1, an identity card of the appellant, was marked. The learned Additional Sessions Judge on appraisal of the evidence arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. Now this appeal. 5. PWs 1 and 2 had given corroborating evidence to the effect that while they were moving on patrol duty at 6.p.m, on 30.8.2000, the appellant was found possessing MO1 plastic bag inside of which MOs 1 to 3 bottles with liquors were kept. Though PWs 1 and 2 were subjected to searching cross examination, no material was disclosed to disbelieve them. There is no suggestion to PWs 1 and 2 that they were any way motivated against the appellant. The evidence of PWs 1 and 2 is corroborated by Ext.P2 seizure mahazar and Ext.P3 occurrence report. In the evidence of DWs 1 and 2, there is no whisper that PWs 1 and 2 were anyway motivated against the appellant. What all deposed was that the appellant was a worker of Madya Thozhilali Sanghadana, in support of which Ext.D1 was Crl.A.No.1859/2004. 5 produced. The prosecution didn't dispute Ext.D1. Ext.D1 is not at all a reason to disbelieve PWs 1 and 2, who withstood the cross examination. Ext.P7 would show that the liquor contained in MOs 1 to 3 were having 36.16% and 43.22% of Ethyl Alcohol by volume. In the above circumstance, I find that the learned Additional Sessions Judge had correctly appraised the evidence and arrived at a right conclusion that the appellant was found possessing three bottles of brandy each containing 750 ml and one bottle Victoria XXX rum containing 750 ml. 6. The question then arises is whether the liquor was imported from Pondicherry or not. Admittedly, the Rum bottle didn't contain any seal that it is permissible for sale in the State. The brandy bottles did contain seal that it is permissible for sale in Pondicherry alone. It means it was intended for sale in Pondicherry. However, there is no case for the prosecution that the appellant had transported it. No evidence was collected as to how the appellant got it. Therefore, the only presumption that can be arrived at is that the appellant might have got it from persons who might have illegally imported from Pondicherry. Crl.A.No.1859/2004. 6 Section 13 of the Abkari Act read with SRO 127/99 would show that the appellant had been possessing liquor exceeding the permitted quantity. At that time, the quantity permitted was only three litres. In an almost identical case, Mohanan v. State of Kerala [2007(1)KLT 845] the Division Bench of this Court found that in such cases only an offence under Section 63 would be attracted. I find no reason to arrive at a divergent conclusion. Therefore, I find that conviction for offence under Section 55(a) read with Rule 9 of Foreign Liquor Rules is not sustainable whereas, the appellant is liable to be convicted for offence under Section 63 of the Abkari Act. Consequently, I set aside the conviction for offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and the appellant is convicted for offence under Section 63 of the Abkari Act. Taking into account of the quantity of liquor that the appellant was possessing, I find that a fine of Rs.5,000/- would meet the ends of justice. 7. In the result, the appeal is allowed in part. The conviction and sentence under challenge are set aside. Instead Crl.A.No.1859/2004. 7 the appellant is convicted for offence under Section 63 of the Abkari Act and sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only). In default of payment of fine, the appellant shall undergo simple imprisonment for six months. The trial court shall see the execution of sentence and report compliance. ## **(P.S.GOPINATHAN, JUDGE)** **ps/10/11**