BIJU S/O SUKUMARAN PILLAI v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938 CRL.A.No. 1519 of 2012 () -------------------------- AGAINST THE JUDGMENT IN SC 540/2010 of ADDL. DISTRICT COURT (ADHOC), KOLLAM APPELLANT(S)/1ST ACCUSED: ------------------------------- BIJU S/O.SUKUMARAN PILLAI, MURUKAVILASOM VEEDU, MOONNUMUKKU, ACHENCOVIL MURI, ARIYANKAVU VILLAGE, KOLLAM DISTRICT. BY ADVS.SRI.K.SIJU SRI.S.ABHILASH SMT.CHITHRA.S.BABU RESPONDENT(S)/COMPLAINANT: ---------------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, THENMALA POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ALEXM.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2017, ALONG WITH CRA. 13/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013 ~~~~~~~~~~~ Dated this the 20[th ] January, 2017** ## **J U D G M E N T** The appellants, in these two appeals, challenge the conviction and sentence against them under Section 55 (a) and (i) of the Kerala Abkari Act ('the Act” for short) in S.C No.540 of 2010 of the Court of Session, Kollam. These two appellants and another person by name Shahan (A3) faced prosecution before the trial court on the allegation that at about 4 p.m on 28.12.2009, they were found transporting a huge quantity of Indian Made Foreign Liquor in the Jeep No.KL7-P2329 driven by the 1[st] accused (appellant in Crl.A No.1519/2012). The offence was detected by the Sub Inspector of Police, Thenmala. On suspicion, the Sub Inspector intercepted the jeep. The jeep was immediately stopped, and just then, a passenger seen on the front seat of the vehicle ran off and escaped. When the Sub Inspector inspected the vehicle, he found a passenger on the rear seat of the jeep holding a big **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** **2** shopper containing something. Another big shopper was seen on the front seat also. When he opened and examined the two big shoppers, he found liquor bottles therein. The big shopper on the front seat was found containing 46 liquor bottles of 375 ml capacity, and the big shopper in the possession of the passenger on the rear seat was found containing 12 bottles of 500ml capacity; all bottles containing full quantity of Indian made Foreign Liquor, and all the bottles bearing the seal of the Kerala State Beverages Corporation. The driver of the jeep and also the passenger on the rear seat were arrested by the Sub Inspector, and the liquor bottles were seized as per mahazar. On the basis of the seizure, the Sub Inspector registered the crime against three persons under Section 55 (a) and (i) of the Act. After investigation, the Police submitted final report in court against three persons. The first accused is the driver of the vehicle, the 2[nd] accused is the passenger seen on the rear seat, and the 3[rd] accused is the passenger on the front seat, who ran off and escaped. **3** **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** 2. The three accused entered appearance before the learned Additional Sessions Judge (Adhoc) I, Kollam and pleaded not guilty to the charge framed against them under Section 55 (i) of the Act. The prosecution examined five witnesses, and proved Exts.P1 to P16 documents. Of the five witnesses, PW1 and 2 are the independent witnesses examined by the prosecutor, PW3 is the Head Constable who had accompanied the Sub Inspector, PW4 is the Sub Inspector who detected the offence, registered the crime and investigated the case, and PW5 is the Sub Inspector who submitted final report . 3. When the case came up for examination of the accused under section 313 Cr.P.C, the 3[rd] accused remained absent consistently, and at that stage, the case against him was split up and the case proceeded against the accused Nos.1 and 2. When examined under Section 313 Cr.P.C, the accused Nos.1 and 2 denied the incriminating circumstances. They did not adduce any evidence in defence. **4** ## **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** 4. On an appreciation of the evidence, the trial court found the accused Nos.1 and 2 guilty. On conviction, they were sentenced to undergo simple imprisonment for two years each and to pay a fine of Rs.1 lakh each under Section 55 (a) and (i) of the Act by judgment dated 7.12.2012. Aggrieved by the judgment of conviction, the accused Nos.1 and 2 have come up in appeal. Crl.A No.1519/2012 is the appeal brought by the 1[st] accused and Crl.A No.13/2013 is the appeal brought by the 2[nd] accused. 5. When the two appeals came up for hearing, the learned counsel submitted that there is absolutely no evidence to show that the quantity of liquor seized by the Sub Inspector was in fact possessed, or transported or allowed to be transported in the vehicle, by the 1[st] accused. The learned counsel for the second accused submitted that the 2[nd] accused in fact happened to hold a big shopper belonging to the other passenger who ran off and escaped, and that the 2[nd] accused was not aware of the contents of the big shopper when he just helped the **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** **5** other passenger. The learned counsel also submitted in the alternative, that if at all a conviction is possible against the 2[nd] accused, it could be only under Section 63 of the Act. 6. On hearing both sides, and on a perusal of the materials I find that there is no clear and satisfactory evidence in this case against the 1[st] accused who was the driver of the vehicle. The evidence of the Detecting Officer and also the Head Constable will show that just when the 1[st] accused stopped the vehicle, the 3[rd] accused who was sitting on the front seat ran off and escaped. The big shopper containing 46 bottles of liquor was seen on the front seat of the vehicle. The other big shopper containing 12 bottles of 500 ml each was seen in the hands of the 2[nd] accused. As regards detection, the evidence of PW3 and PW4 stands not discredited in any manner. 7. The Sub Inspector and the Head Constable are definite and consistent in their evidence regarding the seizure of 58 bottles of Indian made Foreign Liquor. A **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** **6** big shopper containing 12 bottles was seen in the hands of the 2[nd] accused. Seizure of this big shopper from his possession is well proved. In such a situation, it is for him to explain, or account for, the possession of that quantity of 6 litres of IMFL. There is nothing to show that the 2[nd] accused just happened to help the other accused who ran off and escaped. In the absence of any such evidence rebutting the presumption against him, it will have to be found that the said quantity of six litres of Indian made Foreign Liquor was possessed by him with the knowledge that it is in violation of the provisions of the law under the Abkari Act. Anyway, a conviction is not possible against him under Section 55 (a) of the Act, because mere possession or transportation of liquor in excess of the quantity permitted under the law is punishable only under Section 63 of the Act. I find that in the present circumstances, the conviction possible against the 2[nd] accused is only under Section 63 of the Act. Seizure of 6 litres of liquor from his possession stands well proved. The prosecution records will show **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** **7** that it was the liquor purchased from the outlet of the Kerala State Beverages Corporation. If so, the accused cannot be punished and convicted under Section 55 (a) of the Act in view of the decision of this Court in **Mohanan v. State of Kerala (DB)** [2007 (1) KLT 845]. 8. Now the question is whether the first accused can be found guilty in this case. Even according to the prosecution, the passenger found on the front seat ran off and escaped on seeing the Police party. In such a situation, the question is whether the driver of the vehicle had any knowledge that the big shopper possessed or carried by the passenger on the front seat of the vehicle contained Indian made Foreign Liquor. The mahazar, and also the evidence of the Sub Inspector will show that the big shopper was in a tied up condition. This means that the driver could not have in fact seen what the said big shopper contained. In such a situation, the driver cannot be punished under Section 61 of the Act also. Such a conviction is possible only if there is evidence to show that any passenger was allowed by the **8** ## **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** driver of the vehicle to carry liquor in his vehicle. I find that the first accused is entitled for the benefit of doubt as to whether the big shopper containing 46 bottles was in fact transported by him in his vehicle, or whether it was carried by the passenger (A3), who ran off and escaped on seeing the police party. This is in fact a serious doubt, the benefit of which must necessarily go to the 1[st] accused. I find that the first accused is entitled for acquittal on the said ground, and that the 2[nd] accused is liable for conviction under Section 63 of the Act. The maximum punishment possible thereunder is only a fine sentence of 5000/-.₹ In the result, Crl.A No.1519/2012 is allowed in toto, and Crl.A No.13/2013 is allowed in part. The appellant in Crl.A No.1519/2012 (A1) is found not guilty of the offence under Section 55 (a) & (i) of the Act and he is acquitted of the offence in appeal under Section 386 (b) (i) Cr.P.C. The bail bond, if any, executed by him will stand discharged. The finding of guilty made by the trial court against the appellant in Crl A. 13/2013 (A2) is confirmed **9** **Crl.A Nos.1519 of 2012 & Crl.A No.13 of 2013** with the modification and alteration in appeal, that a conviction is possible only under Section 63 of the Act. Accordingly, the conviction and sentence against the 1[st] accused in SC 540 of 2010 of the court below under Section 55 (a) & (i) of the Act will stand set aside, and the 2[nd] accused is convicted under Section 63 of the Act in appeal. He is sentenced to pay a fine of 5000/- or in₹ default to undergo simple imprisonment for three months. He will have to surrender before the trial court within two weeks and remit the amount of fine or undergo the default sentence. The amount, if any, deposited by the 1[st] accused as a condition for suspension of sentence, will be released to him. If the 2[nd] accused has made any such deposit in excess of ₹ 5000/-, the amount of fine can be set off, and the balance can be released to him. sD/- **P.UBAID JUDGE** ma /True copy/ P.S to Judge