CRL.A. Nos. 394 of 2009 and 1133 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933 CRL.A.No. 394 of 2009 (D ) ------------------------SC.295/2006 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY CP.4/2006 of J.M.F.C.,THALASSERY APPELLANT(S)/ACCUSED 1 & 2: -------------------------- 1. POOCHIRAVALAPPIL BYJESH,S/O.V.P.SHYAMALA AGED 28 YRS,AZHEEKODE AMSOM,AZHEEKKAL DESOM KANNUR DISTRICT. 2. POOCHIRAVALAPPIL SAJEENDRAN, S/O.NARAYANAN, AGED 33 YRS, AZHEEKODE AMSOM AZHEEKKAL DESOM, KANNUR DIST. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT/STATE: -------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2012, ALONG WITH CRA. 1133/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. ---------------------------------------- Crl.A.Nos.394 of 2009 &1133 of 2009 ---------------------------------------Dated the 16[th] day of February , 2012 ## JUDGMENT As the above two appeals are arising out of one and the same judgment and the appellants are the accused in the very same Sessions Case and especially, when the question of facts and law involved are the same and identical, these appeals are heard together and being disposed of by this common judgment. 2. Crl.A No.394 of 2009 is preferred by accused Nos. 1 and 2 in S.C.No.295 of 2006 on the file of the court of Additional Sessions Judge, Adhoc-II , Thalassery whereas Crl.A.No.1133 of 2009 is filed by the 3[rd] accused in the very same Sessions Case. 3. The prosecution allegation is that on 25.3.2004 at 6.00 p.m near Muzhuppilangad madam, the accused were found unauthorisedly transporting 24 bottles of 750 ml each Super gold brandy, 144 bottles of 180 ml each Premier KS XXX Rum, both saleable in Pondicherry State alone and 48 bottles of 180 ml each African XXX Rum, altogether 52.560 litres of Indian made foreign liquor, in an autorickshaw bearing registration No. KL-13-9623 on the public road in front of a house in contravention CRA 394 & 1133/09 **:-2-:** of the provisions of Abkari Act, and the accused were arrested on the spot and the contraband articles were also recovered by the detecting officer. On the basis of the above allegation, Cr.No.11/2004 of Kannur Excise Range was registered for the offence punishable under section 55(a) of the Abkari Act. On completing the investigation, report was filed in the court of Additional Chief Judicial Magistrate, Thalassery which was received on file as C.P.No.4/2006. As A3 was absconding, the case against him was split up and refiled as C.P.No.53/2006 but the case against A1 and A2 was committed by order dated 29.3.2006 in C.P.No.4/2006 and the same was received as S.C.No.295/06. In the meanwhile the absconding 3[rd] accused surrendered before the committal court and the same was subsequently committed to the Sessions Court and received the same as S.C.No.726/06. Consequently, S.C.No.726/06 was clubbed with the main case i.e., 295/06 and all further proceedings in S.C.No.726/2006 were closed, and as such, trial against A1 to A3 proceeded in S.C.No.295/06. On appearance of the accused and on perusal of the case records and after hearing the prosecution as well as the defence, the learned CRA 394 & 1133/09 **:-3-:** Judge of the trial court framed a charge against the accused for the offence punishable under section 55(a) of the Abkari Act. When the above charge read over and explained to the accused, they denied the same and pleaded not guilty which resulted in the further trial of the case , during which PWs 1 to 6 are examined and Exts.P1 to P13 were marked from the side of the prosecution. Besides the above, M.Os 1 to 5 were identified and marked as material objects. The accused were questioned under section 313 of Cr.P.C., and during the trial of defence evidence, DW1 was examined for and on behalf of the accused. The learned Judge of the trial court after having considered the evidence and materials and the circumstances involved in the case, held that MO1 series to MO4 series including the sample bottles of Indian made foreign liquor were unlawfully transported by A1 to A3 in contravention of the provisions of the Abkari Act and thereby it is proved that they have committed the offence punishable under section 55(a) of the Abkari Act especially when MO-1 to M.O-3 series are proved to have been unlawfully transported from Pondicherry State and the sale of which is not permitted in the State of Kerala. It is CRA 394 & 1133/09 **:-4-:** also found that in respect of M.O4 series Indian made foreign liquor also, the accused are proved to have violated the provisions of the Abkari Act and Foreign Liquor Rules as the total quantity of the same is in excess of the prescribed and permissible limit. Thus, the learned Judge of the trial court has specifically found that A1 to A3 are guilty of having committed the offence punishable under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules and they are convicted thereunder. On such conviction, each of the appellants are sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,00,000/- each , in default, they are directed to undergo rigorous imprisonment for a further period of one year each under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. 4. Mr. P.K. Ravi Sankar, the learned counsel appearing for the appellants/accused in Crl.A No.394/009, vehemently submitted that the conviction and sentence imposed against the appellants under section 55(a) of the Abkai Act is not legally and factually sustainable, especially when the prosecution has no specific allegation that the appellants were CRA 394 & 1133/09 **:-5-:** found in possession of the contraband article while they were importing the same. After referring the court charge, the learned counsel submitted that even in the court charge also, there is no allegation against the appellants that they were intercepted with the contraband article while they were importing the same from outside State. It is also pointed out by the learned counsel that in the court charge also there is no reference to Rule 9 of the Foreign Liquor Rules. But the learned Judge convicted and sentenced the appellants for the offence under section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and therefore, the conviction and sentence of the appellants for the said offence is highly arbitrary and illegal. In support of the above contention, the learned counsel heavily placed reliance upon the decisions of this court in **Narayanan Nair v. State of Kerala** (2011 (3) KLT 722); **Mohanan** v. **State of Kerala** (2007(1) KLT 845(DB); **D.Abdulla** v. **Station House Officer** (2007 (4) KHC 907) and **Sudhepan v. State of Kerala** (2006(1) KLJ SN 52 (case No.72). 5. Advocate Sri A Abdul Jaleel, the leaned counsel (State CRA 394 & 1133/09 **:-6-:** Brief) appearing for the appellant in Crl.A.No.1133/2009, adopting the submission made by the counsel for the appellant in the other appeal, submitted that Section 55(a) is not attracted against the appellant/A3. It is also pointed out by the learned counsel that, even according to the prosecution they have no case that any contraband article is recovered from the physical possession of A3 or from the driver seat of the vehicle in question and therefore, A3 is absolutely innocent and he is in no way responsible for the alleged possession and seizure of the contraband article from A1 and A2 even if the same is admitted as true. 6. On the other hand, Smt. S. Hyma, the learned Public Prosecutor for the State strenuously submitted that the appellants/accused were arrested while they were in possession and transporting the contraband article which are meant for sales in Pondicherry and therefore, it is crystal clear that they were importing the material objects from outside State to the State of Kerala and hence, the offence under section 55(a) is attracted and therefore, the findings, conviction and sentence imposed by the trial court need no interference. To CRA 394 & 1133/09 **:-7-:** substantiate the above contention, the learned Public Prosecutor has further submitted that A1 and A2 involved in this case are direct brothers and their criminal conduct is further manifest from their conduct and while giving the name of the father, they deliberately gave the father's name differently. Thus according to the learned Public Prosecutor, the findings of the court below and the conviction and sentence imposed against the appellants/accused is fully correct and legal and no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel appearing for the appellants in both the appeals and the learned Public Prosecutor. I have also perused the judgment of the trial court and scrutinized the evidence and materials on record. In the light of the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor, and in the light of the facts and circumstances and the evidence involved in this case, the question to be considered is whether the trial court is justified in its finding that the appellants have committed the offences punishable under section 55(a) of the Abkari Act and Rule 9 of CRA 394 & 1133/09 **:-8-:** the Foreign Liquor Rules. 8. In order to substantiate the prosecution allegation, particularly, the incident, the prosecution mainly depends upon the evidence of PWs 1 and 2. PW1 is the officer who detected the crime. His evidence in the chief examination is that, while himself and party were on patrol duty, near Muzhappilangad madom in the Kannur - Thalassery public road, they stopped an autorickshaw bearing registration No. KL-13G9623 and on inspection of the same in the presence of the witnesses, he had seen A3 in the driver seat who drove the vehicle and accused Nos. 1 and 2 were found sitting in the back seat. Then he had deposed about the material objects possessed by A1 and A2. He had also deposed about the preparation of mahazar and the steps taken by him towards the seizure of the contraband article etc. He had also deposed about the arrest of the accused and the subsequent production of the accused as well as the contraband article in the Excise Range Office, Kannur on the next day. Though PW1 stated that the seizure was effected in pursuance of previous information, no details of such previous information is CRA 394 & 1133/09 **:-9-:** furnished. It is true that during his chief examination, he had simply stated that, on examination of the cardboard boxes which was found on the lap of Byjesh, the Ist accused, he had seen 12 bottles each having 750 ml. Capacity of the bottles containing the label 'Super Gold brandy, Premium Distillery Pvt. Limited for sale in Pondicherry only'. During the evidence of PW1, there is not even a whisper to the effect that the material objects were being imported by the accused. When PW2 was examined, he had simply stated during his chief examination in the following words: “KL 13G 9623 നനര ഓട��റ�കയ�ല 216 ക�പ� മ�ഹ�യ�ല ന�ന� കടത�ക��ണ� വന മദ�വ�� 3 പ�ത�കക യ�� �ട�ച case കകണട���ടന�ള ഞ�ന�� PW1ക$റ ക%കട ഉണ�യ�ര�ന�.” In all other respects, his evidence is in tune with the evidence of PW1. In this juncture it is relevant to note that, PW1 has no case that the contraband articles which seized by him is either imported or transported from Mahe. Though the subsequent investigation was undertaken by PW5 and the charge was laid by PW6, the above witnesses did not conduct any investigation regarding the origin of the contraband article and they have no case that the contraband articles CRA 394 & 1133/09 **:-10-:** which seized in this case were imported by the accused or the said material objects were seized while they were in possession of the same during importing the same from out of the State. Thus on examination of the available evidence and materials on record, it can be seen that the prosecution has no specific case that the material objects, i.e. Indian made foreign liquor were imported from out of the State of Kerala or the accused were arrested while they were in possession of the contraband article during the time of importing the same from out of State. The evidence available on record are also not suggestive to come into a conclusion in that direction. It is in this juncture, the authorities cited by the learned counsel for the appellants become relevant. Recently, a learned Judge of this court in the decision in **Narayanan Nair v. State of Kerala** (2011(2) KLT 722), has held that , to prove offence under section 55(a) read with Rule 9 of the Foreign Liquor Rules, prosecution must prove that accused “brought” IMFL into State of Kerala, from some place which lies outside the State. In the above decision, the learned Judge came into such a conclusion after considering the meaning of the words CRA 394 & 1133/09 **:-11-:** 'import' , 'transport' that contained in Sections 6, 10 Section 55(a) of the Act. Even before the above decision, another learned Judge of this Court in the decision in **B.Abdulla v. Station House Officer** (2007 (4) KHC 907), has held: “ As per S.55(a), eight different and distinct offences are narrated. S.55(a) is relating to imports, exports, transports, transits or possesses liquor or any . kind of intoxicating drugs” The learned Judge, following another decision this court in **Surendran v. Excise Inspector** (2004 KHC 72), further held: '' The prosecution should allege and prove that such possession of liquor or intoxicated drug shall be in connection with any import, export, transport or transit of the same. In **Abdulla's** case also, the contraband article involved was A.J.Fenny for use in Karnataka. In that case, the learned Judge has held that, on failure to prove that the accused were importing Indian made foreign liquor to the State of Kerala as contemplated under section 55(a) of the Aqbkari Act, the only offence attracted is under section 63 of the Kerala Abkari Act. 9. Similarly, another learned Judge of this Court in the decision in **Suthepan v. State of Kerala** (2006(1) KLT SN 52 CRA 394 & 1133/09 **:-12-:** page 72), has held that, possession of contraband liquor alone is not sufficient to attract Section 55(a) and the prosecution must allege and prove that such possession was incidental or in connection with export, import or transit of liquor. A Division Bench of this court in the decision in **Mohanan v. State of Kerala** (2007(1) KLT 845), clarified the position that section 55 (a) deals with only illegal import, export or transport, transit etc. It is further made clear that, Section 55(a) is applicable only when the persons illegally imports or transport liquor or in possession of liquor while illegally importing. In that case, though the contraband article involved is not Indian made foreign liquor, after laying down the dictum, that too after considering various authorities, it was finally found that the accused therein is liable to be convicted only for the offence under section 63 and accordingly, sentenced him to pay a fine of Rs.5000/- 10. The learned Public Prosecutor fairly conceded that she has no challenge against the dictum laid down by this court in the above decisions and she has no dispute that the dictum laid down therein has no application in the light of the facts CRA 394 & 1133/09 **:-13-:** and circumstances involved in the present case. On application of the dictum laid down by this court through the above decisions in this case, wherein neither the prosecution nor in the court charge, there is any allegation that the contraband articles involved in this case were found in possession of the accused while they were importing the same from outside Kerala and the available evidence and materials are not sufficient to hold that the accused were intercepted while they were in possession of the contraband articles during the import of those items from outside State of Kerala. Therefore, I have no hesitation to hold that the trial court is incorrect and illegal in its finding that the appellants have committed the offence punishable under section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and therefore, the conviction of the appellants under section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules as recorded by the trial court is set aside. But in the light of the evidence of PWs 1 and 2 and other materials on record, it can be seen that the prosecution has succeeded in proving that the appellants were found in possession of Indian made foreign liquor, which CRA 394 & 1133/09 **:-14-:** is meant for sale in Pondicherry without proper authority or licence, and therefore, the appellants are liable to be convicted under section 63 of the Kerala Abkari Act. 11. In the result, the above Crl.Appeals are allowed in part setting aside the conviction and sentence of the appellants for the offence under section 55(a) of the Abkari Act imposed against them vide judgment dated 24.1.2009 in S.C.No.295 of 2006 of the court of Addl.Sessions Judge, Adhoc-II, Thalassery and they are acquitted of the offence punishable under section 55(a) of the Abkari Act. 12. In the light of the foregone discussion and the findings that the appellants have committed the offence under section 63 of the Abkari Act, the appellants are convicted for the offence under section 63 of the Abkari Act. Accordingly the appellants/accused in Crl.A.No.394 of 2009 are sentenced to pay a fine of Rs.5000/- each within one month from today, failing which each of them is directed to undergo simple imprisonment for a period of six months and the appellants in Crl.A.No.394/2009 are directed to appear before the trial court on any date, within one month from today to deposit the fine CRA 394 & 1133/09 **:-15-:** amount or to undergo the default sentence, in case of their failure to deposit the fine amount. 13. In this juncture it is relevant to note that the appellant in Crl.A.No.1133/2009, the 3[rd] accused, in the above Sessions Case, is undergoing imprisonment though the execution of the sentence imposed against him is suspended, as he was not able to execute even the bond. Therefore, according to me, in the matter of sentence against the 3[rd] accused, a lenient and different approach is warranted in the interest of justice, especially, when he had already undergone the substantial period of sentence. Under the above particular factual background, the appellant in Crl.A.No.1133/2009, the 3[rd] accused in the above Sessions case, on his conviction under section 63 of the Abkari Act, is sentenced to undergo rigorous imprisonment for a period of two months. It is also made clear that the 3[rd] accused appellant is entitled to get the benefit under section 428 Cr.P.C for set off against the period which he undergone as undertrial prisoner. In the light of the above order, the Registry is directed to CRA 394 & 1133/09 **:-16-:** forward the gist of this judgment to the Superintendent, Central Prison, Kannur forthwith for further action in the matter. **V.K.MOHANAN, JUDGE** Kvm/- CRA 394 & 1133/09 **:-17-:**