Binesh, S/o Balan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 21ST DAY OF FEBRUARY 2017 / 2ND PHALGUNA, 1938 **CRL.A.No. 1082 of 2009** [AGAINST THE JUDGMENT IN SC 479/2008 of the court of ADDL.SESSIONS JUDGE, THRISSUR (FAST TRACK COURT NO.II-ADHOC)DATED 22-05-2009 AGAINST THE ORDER IN CP 64/2007 of J.M.F.C.-III,THRISSUR DATED 17-11-2007] ## **APPELLANT** (S)/ACCUSED: BINESH, S/O.BALAN,KADAMBUSHA HOUSE, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADVS.SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN **RESPONDENT** (S)/COMPLAINANT:: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MARY JOSEPH, J.** **========================= Crl. Appeal No.1082 of 2009 CR ========================= Dated this the 21[st] day of February, 2017** ## **J U D G M E N T** **-------------------** This Criminal Appeal is directed against the judgment dated 22.05.2009 of the Additional Court of Sessions, Thrissur (Fast Track Court-II (Ad-Hoc) (for short 'the court below') in ST No.479/2008. The appellant is the sole accused in the said case. He was charge sheeted by the C.I. of Excise, Excise Range, Thrissur for the offence punishable under Section 55(a) of the Abkari Act (for short 'the Act'). After trial, he was found guilty by the court below for the offence under Section 55(a) of the Act and accordingly, convicted and sentenced to undergo simple imprisonment for three years and to pay fine of `1,00,000/- and in default to undergo simple imprisonment for one more year. The aggrieved accused has approached this court in the captioned appeal. 2. The case of the prosecution was that on 10.05.2004 at about 12.20hrs., while the Excise Circle Inspector and his fellow Excisemen were on patrol duty through a road leading to 2 Crl. Appeal No.1082 of 2009 Puthoorkovu Parackal Temple at Mannuthi, Ollookkara village in Thrissur Taluk, the accused was found loading a sack in a motor cycle bearing Reg.No.KL-07/K-3300. On watching the officials, the accused ran off from the scene of incident abandoning the vehicle and sack there. He was chased by the officials, but could not be caught. The sack found in the motor cycle was inspected by the officials in the presence of some independent witnesses gathered there and was found to contain 19 bottles each having the capacity of 375 ml. and containing liquor. The liquor in the bottles was identified as illicit liquor on smelling and tasting by the officials. Two bottles out of the 19 bottles were taken as sample. The sample bottles along with the bottles containing the remnant liquor were sealed after affixing labels containing the signatures of the officials as well as the independent witnesses thereon. A seizure mahazar was prepared at the spot. The accused was arrested after complying with all the legal formalities. The samples, the remnant contraband and the accused along with the seizure mahazar prepared were forwarded to the office of the Excise Range Inspector. The Excise Range Inspector prepared the crime and Crl. Appeal No.1082 of 2009 3 occurrence report, the property list and the forwarding note. The contraband, along with the documents prepared, have been sent to the Judicial First Class Magistrate Court-III, Thrissur on 11.05.2004 and the same was received by the court on 12.05.2004. Investigation was conducted by the C.I. of Excise, Excise Range office, Thrissur. After receiving the chemical examination report and on concluding the investigation, a final report was laid by the C.I. of Excise before the Judicial First Class Magistrate Court-III, Thrissur, charge sheeting the accused for the offence punishable under Section 55(a) of the Act. The Magistrate committed the case to the Court of Sessions, Thrissur which made it over to the court below. After hearing the learned Public Prosecutor and the learned counsel appearing for the defence, charge was framed against the accused for the offence under Section 55(a) of the Act. The charge was read over and explained, for which the accused pleaded not guilty and faced trial. 3. During trial, the prosecution has examined six witnesses as Pws.1 to 6 , marked 14 documents as Exts.P1 to P14 and material objects as MO1 series and MO2 series. After closure of the 4 Crl. Appeal No.1082 of 2009 evidence of the prosecution, the accused was questioned with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the incriminating circumstances so put, but raised a specific plea that he was falsely them in the case in a implicated by question following confrontation with the Excise Officials. Since no grounds were made out for entering into a finding of acquittal of the accused, he was asked to enter upon his defence. Neither any oral nor documentary evidence was let in by the accused. 4. On an appreciation of the evidence adduced by the prosecution and upon evaluation of the rival arguments put forth by the counsel representing either side, the court below found the accused guilty of the offence under Section 55(a) of the Act and convicted and sentenced him accordingly by the judgment under challenge in this appeal. 5. Sri.V.C.Sharath, the learned counsel and Smt.Sheeba K.K., the learned Public Prosecutor addressed this Court on behalf of the accused and the prosecution. Both counsel were heard extensively on their rival contentions. 5 Crl. Appeal No.1082 of 2009 6. Sri.V.C.Sharath, the learned counsel for the accused has canvassed for reversal of the judgment under challenge, mainly on three grounds. The first and foremost argument of Sri.V.C.Sharath, the learned counsel was that the allegations levelled by the prosecution against the accused are insufficient to constitute an offence under Section 55(a) of the Act. The learned counsel has invited my attention to Section 55(a) of the Act and also the dictum laid down by a Division Bench of this Court in **Mohanan v. State of Kerala** [2007(1) KLT 845] as well as the observations made by another Division Bench in **Josekutty v. State of Kerala** [2013(1) KLT 434] to rest the said argument. The second argument advanced by the learned counsel was based on the allegation of the prosecution that on watching the officials, the accused fled from the scene wherefrom the contraband was detected and therefore, it is impossible for any of the witnesses, who had no claim of previous acquaintance with the accused, to identify him. The counsel pointed out that the accused was not apprehended till the final report was filed before the court by the officials. According to him, none of the witnesses examined by the prosecution has spoken to Crl. Appeal No.1082 of 2009 6 have identified the accused during investigation. The evidence of the prosecution also does not unveil a case of identification of the accused by its witnesses in court during trial. The third argument advanced was based on the oral evidence let in by the officials. It is contended by the counsel that PW1 has a specific case during examination that the articles received by him at the Excise Range Office, Thrissur were forwarded through a staff, to the court on 11.5.2004. But, the articles were evidenced from the endorsement in Ext.P6 as received by the court only on 12.05.2004. In the said context that the learned counsel has advanced the argument against the identity of the article. According to him, possibility of tampering cannot be ruled out and the articles received by the court cannot be taken to be those sent by the officials. **7** . Per contra, the learned Public Prosecutor has contended that the court below is perfectly justified in arriving at a finding of guilt of the accused on the basis of the available evidence. According to the learned Public Prosecutor, the arguments advanced by the learned counsel for the accused are only liable to be discarded being untenable ones and the judgment under 7 Crl. Appeal No.1082 of 2009 challenge needs to be confirmed. In the backdrop of the rival contentions so put forth by the respective counsel, it is appropriate for this Court to have an in-depth analysis of the evidence on record and a proper evaluation of the same. 8. With respect to the first argument that allegations are insufficient to attract the ingredients of the offence under Section 55(a), it is pertinent to have a look at the said provision in the Act which, for the purpose, is extracted hereinbelow: **“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 possesses] liquor or any intoxicating drug; or (b) manufactures liquor or any intoxicating drug; (c) xxxxx (d) [taps or causes to be tapped] any toddyproducing tree or (e) [draws or causes to be drawn] toddy from any tree; or (f) constructs or works any [distillery, brewery, winery or other manufactory in which liquor is manufactured]; or (g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or [(h) bottles any liquor for purposes of sale; or] [(i) [sells or stores for sale liquor] or any intoxicating drug;] [shall, be punishable] (1) for any offence, other than an offence falling under clause(d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh , and Crl. Appeal No.1082 of 2009 8 (2) for an offence falling under clause (d) or clause(e) with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both. **Explanation** :- For the purpose of this Section or Section 64A, “intoxicating drug” means any intoxicating substance, other than a narcotic drug or psychotropic substance, regulated by the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), which the Government may by Notification declare to be an intoxicating drug.” ## 9. The dictum in **Mohanan's case (supra)** is relied on by the learned counsel to substantiate that mere possession of liquor would not attract punishment for the offence under Section 55(a) of the Act. The dictum in the case supra finds in paragraph 9 being relevant, is extracted hereinbelow:- “9. ................. .................. ....................... ............. ..................... ............. The words 'transports, transits or possesses' were subsequently added to the words 'imports, exports'. The words 'transports, transits or possesses' coming after the words 'imports, exports' show that subsequent words should be read in ejusdem generis to the words 'imports or exports'. The literal meaning of 'Ejusdem Generis' is 'of the same class or kind'. (See: Trayner's Latin Maxims (Seventh Edition, page 181). Rule of 'Ejusdem Generis' is explained and accepted by the Hon'ble Apex Court in Kavalappara Kottarathil Kochuni @ Moopil Nayar v. The States of Madras and Kerala & Ors. (1960 KLT 31 (SC) = AIR 1960 SC 1080), State of Karnataka & Ors. v. Kempaiah (AIR 1998 SC 3047) etc. to the effect that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified..” ## 10. The Division Bench found in the circumstances that Section 55(a) deals only with illegal import or export or transport, Crl. Appeal No.1082 of 2009 9 transit etc. on such import or export and therefore, the punishment provided therein is only applicable in the case of persons illegally import or transport liquor or are in possession of liquor in the course of illegal import or transport. It follows from the said dictum that the offence under Section 55(a) would be attracted only when a person illegally imports or transports liquor or possesses liquor during illegal import of the same. In the backdrop of the said dictum, it is pertinent to have a look at the allegations of the prosecution in the final report filed under subsection(2) of Section 173 Cr.P.C. “ 2004 æÎÏí ÎÞØ¢ 10_)¢ ÄßÏîÄß ÉµW 12.20 ÎÃß ØÎÏJíådÄßÛâV ÄÞÜâAí ²ÜïâAø ÕßçÜï¼í ÎHáJß çÆÖJí µ¿ÞOáÝ ÌÞÜX εX ÌßçÈ×í ÄÞÎØßAáK Õà¿ßÈá ÎáX ÕÖ¢ µßÝAá É¿ßEÞùÞÏß µß¿AáK ÉáÄáVçAÞÕí_ÉÞùAW çfdÄJßçÜAáU çùÞÁßæa æÄæA ¥øßµßW Õºîí çÎÞçGÞV èØAß{ßW ÕcÞ¼ÎÆc¢ µ¿JßæµÞIáÕK µáxJßÈá dÄßÛâV ÄÞÜâAí ²ÜïâAø ÕßçÜï¼í ÎHáJß çÆÖJí µ¿ÞOáÝ ÌÞÜX εX ÌßçÈ×ßæa çÉøßW ®µíèØØí ®XçËÞÝíØíæÎaí ¦aí ¦aß ÈÞVçAÞGßµí ØíæÉ×cW ØíµbÞÁí ØVAßZ §XØíæɵí¿V dÖà. ¿ß. øÞÇÞdµß×íÃÈᢠÉÞVGßÏᢠCrl. Appeal No.1082 of 2009 10 çµæT¿áJßGáUÄᢠ............................................................... dÉÄßÏáæ¿ çÉøßW µáxÉdÄ¢ ÄÏîÞùÞAß ÌÙáÎÞÈæMG çµÞ¿ÄßÏßW çÎW È¿É¿ßµZAÞÏß ØÎVMߺîá æµÞUáKá.” 11. From the aforesaid extract, it is clear that the allegations are suffice to indicate the involvement of the accused in the transportation of illicit liquor in a motor cycle. But, there is absolute want of allegations in the final report to indicate that illicit liquor was transported by the accused for the purpose of import or export. ## 12. Contextually, the charge framed by the court below also requires attention and is extracted hereunder:- “That on 10.5.2001 at about 12.20 hours, you were found in possession of and conducting sale on illicit liquor by Excise Enforcement Inspector T.Radhakrishnan and party from the place of occurrence mentioned in the scene mahazar, that thereby you have committed an offence under Section 55(a) and (i) of the Abkari Act, offence within the cognisance of this court and that you be tried for said offence by this court.” The charges framed do not expose allegations to indicate that the illicit liquor was transported either for import or export as contemplated under Section 55(a), describing the offence. Section 211 Cr.P.C. which provides for the contents to be incorporated in a Crl. Appeal No.1082 of 2009 11 charge is worthy to be looked into in the context and therefore, extracted hereinbelow. _“_ _**211. Contents of charge** .--(1) Every charge under this Code shall state the offence with which the accused is charged. (2)xxxxxxxxxxxxxxx_ - _(3)If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged._ - _(4) xxxxxxxxx_ - _(5)xxxxxxxxxxxxxx_ - _(6)xxxxxxxxxxx_ - _(7)If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhance to punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.”_ It is expressly provided in section 211 Cr.P.C. that the charge framed by the court shall give the accused full notice of the offence charged against him. It is pertinent in this connection to note that allegations sufficient to attract the ingredients which constitute the offence are lacking in the charge framed by the court. Therefore, the accused cannot be said to have been put to notice by the charge framed by the court, of what the prosecution intended to prove against him. Framing of proper charge is vital to a criminal 12 Crl. Appeal No.1082 of 2009 trial and that being not done strictly in conformity to the prescription under Section 211 Cr.P.C., space is opened for the accused to contend that the trial held was unfair and accordingly, unsustainable. 13. In the case on hand, the charge framed by the court do not contain relevant informations to put the accused notice of the allegations of the offence under Section 55(a) of the Act and therefore, the trial held against him cannot be said to be a fair exercise. As rightly canvassed by the learned counsel, the conviction, which is the outcome of an improperly framed charge is not liable to sustain. In such a case, the prosecution cannot be heard to contend that sufficient opportunity of being heard was given to the accused and the trial held was a fair one. Or in other words, the prosecution failed to convey the accused with clarity what it intends to prove against him. The charge framed must contain the necessary ingredients of the offence charged against him, for which the source is the police charge. If allegations suffice to attract the offence are lacking in a police charge, the court shall not supply inputs additionally so as to fit the same Crl. Appeal No.1082 of 2009 13 within the provision describing the offence. The court while framing charge has to see whether the police charge incorporates in it, sufficient allegations liable to attract the ingredients of the offence for which he has to face the trial. When viewed in that backdrop, the trial held against the accused in the case on hand undoubtedly is vitiated as it suffers from illegality. 14. The second argument of the learned counsel is pointed at the delay of two days occurred for the contraband articles to reach the court. The counsel has invited my attention to the deposition of PW1. PW1 has stated during examination that the contraband articles along with the samples taken therefrom had been received by him at the Office of the Excise Range, Thrissur and have been forwarded through a staff to the Court on 11.05.2004 itself. PW1 had also conceded in the box based on the endorsement in Ext.P2 that the items forwarded had been received by the court on 11.05.2004. Ext.P3 is the property list prepared by PW1 at the time of forwarding the contraband articles to the court. A glance at the seal of the court found affixed in Ext.P3 would disclose that the contraband along with the samples had been Crl. Appeal No.1082 of 2009 14 received by the court on 12.05.2004. In this connection, it is pertinent to have a look at Ext.P2, which is a report sent by the Excise Inspector, Excise Range Office, Thrissur while forwarding the various documents prepared by him and the thondi articles to the court. But, the endorsement on Ext.P2 would expose that the crime and occurrence report and the seizure mahazar alone were received by the court on the day. Therefore, there cannot be any dispute that the thondi articles claimed to have been forwarded to the court along with the report were not received by the court on 11.05.2004. Therefore, there is absolutely no merit in the contention of PW1 that the thondi articles have been received by the court on 11.05.2004. 15. The sustainability of the argument of the learned counsel that possibility for tampering of the articles in the context as explained by him is relevant to be looked into. It is contended by the counsel that Section 40 of the Act in sub-section (3) makes provision for the forwarding of the contraband articles to the court without unnecessary delay. In the case on hand, PW1 has specifically stated in the box that the contraband articles have been 15 Crl. Appeal No.1082 of 2009 sent through one of his staffs to the court on 11.05.2004. Evidently, the contraband articles were received by the court only on 12.05.2004. Absolutely no explanation is forthcoming from the side of any of the officials of Excise examined before the court regarding the reason for the delay of one day. The alleged staff through whom the contraband was sent to the court was not even made a witness in the case and not examined. Therefore, there is want of evidence to establish, in whose custody the contraband was for the period intervening its forwarding to the court by the Excise Officials and its receipt by it. For the reason, the challenge against the identity of the contraband will sustain. 16. It is pertinent to note that there is total want of evidence of tampering of any nature, in any of the items at the time of receipt of those before the court. The endorsement made from the court does not disclose anything to doubt the identity of the articles received by it. Apart from that, three of the official witnesses examined before the court have a common version that the contraband items and samples seized therefrom were affixed with an impression seal from the spot. Ext.P4, the copy of the Crl. Appeal No.1082 of 2009 16 forwarding note also contains the impression of the sample seal in the space provided to incorporate that. In Ext.P14, the chemical examination report, it is noted that the contraband items at the time of receipt of those by the Chemical Examiner's laboratory were with the seals thereon intact and tallying with the sample seal provided. Therefore, there is absolutely no merit in the argument of the learned counsel that possibility for tampering writs large, on account of the delay of one day occurred for the articles to reach the court. 17. So long as the the third argument is concerned, it is pertinent to see that none of the official witnesses have identified the accused during the trial. In this connection, it is relevant to have a look at the case of the prosecution, which states that the accused fled from the scene on watching the officials proceeding to the spot. Therefore, the identification of the accused by the witnesses is a matter of suspicion, for which the prosecution is duty bound to supply a cogent explanation. In the case on hand, such an explanation is not forthcoming from any of the witnesses examined by the prosecution. Evidence unveils the factum that Crl. Appeal No.1082 of 2009 17 even in the court, during trial, none of the official witnesses have identified the accused. Therefore, as rightly pointed out by the learned counsel, the prosecution case suffers from want of identification of the accused by any of its witnesses. Indisputably, the failure of the witnesses to identify the accused would have a vitiating impact on the trial held. 18. In view of the various aspects projected in the discussions as hereinabove, the prosecution case is liable to fail and as rightly pointed out by the learned counsel, the accused is entitled to get the benefit. 19. In the said circumstances, the Criminal Appeal is only to succeed. In the result, this Criminal Appeal stands allowed and the judgment of the court below under challenge is set aside. The accused is acquitted. The bail bond of the accused is cancelled and he is set at liberty forthwith. **MARY JOSEPH, JUDGE.** SKK/020517 Crl. Appeal No.1082 of 2009 18