Dinesan Thaikoottathil v. State of Kerala and Excise Inspector

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 CRL.A.No. 506 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 410/2004 of ADDL.DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE DATED 08-02-2006 --------- APPELLANT/ACCUSED: ------------------------- DINESAN THAIKOOTTATHIL, S/O.AYYAPPAN, PUTHUPPANNAM, VATAKARA TALUK KOZHIKODE DISTRICT. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.ASHA BABU SRI.G.RENJITH SMT.S.PARVATHI SRI.ARUNBABY STEPHEN SMT.ASWINI SANKER R.S. ## RESPONDENTS/STATE & COMPLAINANT: --------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE EXCISE INSPECTOR, VATAKARA EXCISE RANGE OFFICE, VATAKARA KOZHIKODE DISTRICT. PUBLIC PROSECUTOR MS.NISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.506 of 2006 -----------------------------------------------Dated this the 13[th] day of January, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Kozhikode, for the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo rigorous imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. 3. The prosecution case is briefly stated as follows: PW5, the Excise Inspector, Excise Range Office, Vadakara, and his party were on patrol at Kannookkara in Onchiyam at Crl. Appeal No.506 of 2006 -2- about 12.30 p.m. on 29-09-2001. While so, the excise party got information that Indian made foreign liquor was being imported unauthorisedly in vehicles from Mahi within the Pondicherry state. Therefore, PW5 and his party began to search the vehicles. While so, the bus bearing registration No.KL-13A 9561 named 'Mithun' plying between Thalassery and Vadakara came there. The excise party stopped that bus there and conducted a search in the bus. Then the appellant, a passenger in that bus, was seen carrying a white plastic cover on his lap. Entertaining a doubt, the excise party examined that cover when it was found that it contained 12 bottles of 180 ml. size fully containing Doctors Grape Brandy, an Indian made foreign liquor. The labels of the Kerala State Beverages Corporation were not seen affixed on those bottles. PW5 opened one of the bottles and by tasting and smelling ascertained that the bottles contained Indian made foreign liquor. Since the appellant has committed an offence under the Abkari Act, he was arrested then and Crl. Appeal No.506 of 2006 -3- there after preparing Ext.P3 Arrest Memo in the presence of witnesses. The entire quantity of liquor, namely, 2.160 litres, contained in 12 bottles were seized by PW5 under Ext.P1 Seizure Mahazar in the presence of witnesses. One bottle which was opened for examination was taken as sample and sealed the same. Ext.P4 is the Search List prepared by PW5. Thereafter, PW5 and his party reached the Excise Range Office, Vadakara, with the appellant and the properties and registered Crime No.30 of 2001 of that Range Office in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report thus prepared by PW5. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Vadakara. Ext.P6 is the List of Property and Ext.P7 is the Forwarding Note. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Kozhikode. M.O.1 series are 11 bottles of Indian made foreign liquor seized from the appellant. Ext.P2 is the Location Sketch showing the place of Crl. Appeal No.506 of 2006 -4- occurrence prepared by the Special Village Officer, Onchiyam. The investigation of the case was conducted by PW3, the Excise Inspector, Excise Range Office, Vadakara. He has questioned the witnesses and recorded their statements. After completing the investigation, he has submitted the Final Report before the court. 4. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Vadakara. Subsequently, the case was recalled and made over to the Additional Sessions Court (Ad hoc)-I, Kozhikode. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P8 and M.O.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against Crl. Appeal No.506 of 2006 -5- him. He pleaded that he was innocent of the allegations raised against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found possessing and importing 2.160 litres of Indian made foreign liquor in twelve 180 ml. bottles at about 12.30 p.m. on 29-09-2001. PW5 seized the contraband and arrested the appellant then and there in the presence of witnesses. Thereafter, they were brought to the Excise Range Office, Vadakara. But, the contraband with the sample was produced before the court only on 01-10-2001 as evident from the endorsement made on Ext.P6 List of Property from Crl. Appeal No.506 of 2006 -6- the court. PW5, the Detecting Officer, or PW3, the Investigating Officer, or PW1, the Excise Preventive Officer claimed to have accompanied PW5 at the time of detecting the offence, did not offer any valid explanation for such an inordinate delay occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reasons stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, none of the excise officials examined in this case offered any valid reason explaining the delay in producing the properties before the court. Therefore, this unexplained inordinate delay occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone, the appellant is entitled to an Crl. Appeal No.506 of 2006 -7- order of acquittal. 6. Where the properties were kept after they were seized by PW5 on 29-09-2001 till they were produced before the court on 01-10-2001? No evidence has been adduced by the prosecution answering it through any of the official witnesses examined. Moreover, there is no evidence as to under whose custody the properties were kept during the said period. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned single Judge of this Court observed as follows:- - “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to benefit of doubt in that case. In the case on hand also such a benefit is to be extended to the appellant. Crl. Appeal No.506 of 2006 -8- 7. The prosecution examined PWs.1, 4 and 5 as occurrence witnesses for proving their case. PWs.1 and 5, by and large, supported the prosecution case. Whether their evidence is reliable for finding the appellant guilty of a serious offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules? It is the definite case of the defence that the appellant is innocent of the allegations levelled against him. PW4, who was the conductor of the bus involved, was examined as an independent witness for proving the occurrence. But, he has not supported the prosecution version of occurrence. His evidence cannot be used by the prosecution for proving their case against the appellant. PW1 categorically stated before the court that the appellant was searched and the contraband was ascertained by tasting and smelling inside the bus. But the version of PW5 in regard to these matters is different. He stated that the appellant was taken out of the bus and then the liquor bottle was opened and Crl. Appeal No.506 of 2006 -9- examined. This contradiction in the evidence of PWs.1 and 5 cannot be simply brushed aside. It is a material one especially when it is considered in the light of the evidence of independent witness PW4. 8. It is the case of the prosecution that the appellant was seen importing Indian made foreign liquor. For attracting such an offence, there must be cogent proof to show that the accused has purchased or obtained possession of the liquor from a place outside the State of Kerala. A mere case that the bus was plying from Thalassery to Vadakara en route Mahi is no ground to enter a finding that the liquor was purchased from Mahi. The Investigating Officer does not have a case that he has investigated in regard to the source of the foreign liquor allegedly seized from the appellant. There is absolutely no evidence to show that the appellant has purchased the foreign liquor involved from a place in Mahi. There is also no evidence that he has not purchased the bottles from Kerala itself. The Crl. Appeal No.506 of 2006 -10- investigating agency has not conducted any investigation in regard to these aspects. There is no dispute, at the hearing, that the appellant was possessing only a quantity which was allowed to possess at the relevant time. A mere absence of labels of the Kerala State Beverages Corporation is no ground for finding that it was not purchased from Kerala or it was purchased from outside the state. In any view of the matter, the prosecution miserably failed to prove that the appellant was importing liquor from a place outside the State of Kerala. Since the bus by which the appellant was travelling was coming from Thalassery to Vadakara en route Mahi may create a doubt that he had purchased that liquor from Mahi. The doubt, whatever strong it is, cannot take the place of proof. 9. For the foregoing reasons, the impugned conviction and sentence passed by the court below against the appellant are liable to be set aside. The appellant is entitled to be acquitted of the offence under Section 55(a) of the Crl. Appeal No.506 of 2006 -11- Abkari Act read with Rule 9 of the Foreign Liquor Rules. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE