Divakaran v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938** **CRL.REV.PET.NO.480 OF 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.292/2000 OF ADDITIONAL SESSIONS JUDGEI, MAVELIKKARA DATED 28-07-2004** **AGAINST THE JUDGMENT IN CC NO.330/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM DATED 03-11-2000** **---------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **DIVAKARAN, S/O. KARUTHA KUNJU, MINI BHAVANAM, VALLIKUNNAM MURI,, MAVELIKKARA.** **BY ADVS.SRI.G.SUDHEER KARAKONAM SRI.BASANT BALAJI SRI.R.GOPAN** **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.480 of 2005 --------------------------------Dated this the 22[nd] day of June, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.292 of 2000 of the Additional Sessions Judge-I, Mavelikkara. He was accused in C.C. No.330 of 1997 of the Judicial First Class Magistrate Court, Kayamkulam for having committed the offence punishable under Sec.55(a) of the Abkari Act. The learned Magistrate convicted the accused under Sec.55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for one year and fine of Rs.25,000/- (Rupees twenty five thousand only) in default of payment of fine, simple imprisonment for six months. Against that, the accused preferred Criminal Appeal No.292 of 2000 before the Additional Sessions Judge-I, Mavelikkara, where the learned Additional Sessions Judge modified the sentence as simple imprisonment for six months and fine of Rs.25,000/(Rupees twenty five thousand only) in default of payment Crl. R.P. No.480 of 2005 2 of fine, simple imprisonment for three months. Being aggrieved by that, he preferred this revision petition. 2. The facts necessary for the indictment were that on 01.02.1997 at 12 o' clock in the noon, the accused/revision petitioner was found in possession of 3 litres of illicit arrack in a ten litre volume cannas, along the side of the Thamarakkulam-Choonadu public road in Vallikkunnam Puthenchanda by the preventive officer, Excise Range office, Mavelikkara. He seized the arrack and registered the case. After completing investigation, he filed a complaint in the trial court. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P6. Material objects MO1 was admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Heard both sides. The offence was detected by PW1, Preventive Officer. His evidence shows that while he was conducting patrol duty with PW2, at that time, he saw the revision petitioner possessing MO1. Crl. R.P. No.480 of 2005 3 After preparing Ext.P1 mahazar, he seized the arrack. Accused was enlarged on bail as per Ext.P2 bail bond. PW2 supported the evidence of PW1. The independent witness PW3 admitted his signature in Ext.P1. PW4 Assistant Excise Inspector received the seizure report. On the basis of that, he registered Ext.P3 occurrence report. PW5, the Excise Inspector after completing investigation filed a complaint. The seized articles were produced before the Court, which was forwarded to chemical examiner's lab and obtained Ext.P5 report. Ext.P5 report shows that Ethyl alcohol was detected in the sample. Analysing the evidence, it is found that ethyl alcohol was detected in the seized article. 4. Prohibition of arrack came into force by notification and the Government have decided to abolish all arrack shop in the State from 01.04.1996. As per G.O. (MS) No.26/96/TD dated 14.02.1996, the Government have announced the new excise policy for the year 1996 -1997. Necessary amendments were made in the Abkari Act with effect from 03.06.1997 and a corresponding Crl. R.P. No.480 of 2005 4 notification was issued to achieve the above object. Before amendment, [on 03.06.1997] liquor under Sec.3(10) includes spirit of wine, arrack, spirit, wine, toddy, bear and all liquor consisting of and containing alcohol. But that word 'arrack' in Sec.3(10) was substituted for the word 'methylated spirit' by Sec.2(c) of Act 4 of 1996. Sec.55(a) of the Abkari Act deals with illegal import etc. and the charge against the petitioner was under Sec.55(a). The ingredients under Sec.55(a) of the Abkari Act are import, export, transport, transit or possess liquor or any intoxicating drug, in contravention of the Act or any rule or order made under the Act. A division bench of this court in **Josekutty v. State of Kerala [2013 (1) KLT 434]** discussed the impact of the possession of arrack which reads as follows: 7. The charge against the petitioner was under Sec.55(a). Ingredients of an offence under S.55(a) was import, export, transport, transit or possess liquor or any intoxicating drug, in contravention of the Act or any rule or order made under the Act. The allegation as against the petitioner is limited to possession of illicit liquor in contravention of the Act or rule or order made under the Act. That possession contemplated under Sec.55, though must be in the course of import or Crl. R.P. No.480 of 2005 5 export, possession need not be with the knowledge, as is the case with S.58. Consequently, in the charge framed against the petitioner, there is no allegation that petitioner has been in possession of the liquor with the knowledge that it was illegally manufactured. Question is whether in the absence of a positive allegation that petitioner was possessing illicit liquor knowing that it was unlawfully manufactured, an offence under S.58 is attracted. Though S.64 of he Act provides for the presumption to be drawn, before S.58 along with Ss.55B, 56A, 57, 58A and 58B were inserted, by the Act 16 of 1997 w.e.f. 3.6.1997, presumption cannot be drawn in respect of the offence under S.58, by re-course to S.64 of the Act. Therefore, fact that an accused has been in possession of the illicit liquor by itself is not sufficient. Possession must be knowing that it has been unlawfully manufactured. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession “ with the knowledge that it has been unlawfully manufactured”, S.58 cannot be attracted. Division Bench in **Surendran v. Excise Inspector [2004 (1) KLT 404]** considered this aspect, in paragraph 12 and held: “Learned counsel appearing for the petitioner has specifically stated before us that there was not even a suggestion that petitioner was aware of the fact that it had been illegally imported or manufactured or that duty etc. has not been paid. Thus it appears that even the ingredients of S.58 are not satisfied.” When S.58 mandates that to attract the offence, the person has to be in his possession of any quantity of liquor or any Crl. R.P. No.480 of 2005 6 intoxicating drug “knowing the same have been unlawfully imported, transported or manufactured”. In the absence of a specific allegation in the complaint/final report, that petitioner has been in possession of liquor, knowing that, it was unlawfully manufactured, she cannot be convicted for the offence under S.58 of the Abkari Act. That exactly is the case herein. Except stating that in contravention of the Act petitioner was found in possession of illicit arrack, there is no allegation in the charge that petitioner has been in possession of liquor, with the knowledge that it was unlawfully manufactured. Allegation that is illicit liquor by itself will not attract an offence under S.58, in the absence of a case that petitioner was aware that it is unlawfully manufactured. There may be a case where 'A' entrust a can to 'B' and it was seized from the possession of 'B'. 'B' may not be aware the contents of the can. 'B' is unaware of the fact that the can contains unlawfully manufactured liquor. Can 'B' be prosecuted for the offence under S.58, in the absence of an allegation that 'B' has been in possession of the can containing unlawfully manufactured liquor, with the knowledge that it contained unlawfully manufactured liquor. If presumption under S.64 could be drawn, definitely 'B' could be prosecuted. But in a case where S.64 has no application, as in this case as S.64 then stood in the absence of a specific case that 'B' has been in possession of the can containing liquor with the knowledge that it is unlawfully manufactured, he cannot be prosecuted for the offence under S.58. That exactly is the case herein. Prosecution cannot depend on the defence to be taken by the accused and based on the weakness of the defence case, an accused cannot be convicted for the offence. It is Crl. R.P. No.480 of 2005 7 up to the prosecution to allege that petitioner has been in possession of MO 1 can containing illicit arrack, with the knowledge that it was unlawfully manufactured. When there is no allegation in the complaint and neither PW 1 nor PW 2 had given evidence that petitioner has been in possession of MO 1 can with the knowledge that it contained unlawfully manufactured liquor, she cannot be convicted for the offence under S.58 of Abkari Act. 8. But still petitioner is liable to be convicted as provided under S.63 of the Act. S.63 provides that whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act and not otherwise provided for in the Act shall, on conviction be punished for each such willful act or omission with fine which at the time was of commission of the offence may extend to rupees two thousand. By Act 4 of 1996 which came into force on 27.3.1996, after clause 6 of S.3, clause 6A was inserted defining defining arrack. S.8 was also inserted providing prohibition of manufacture, import, export, transport, transit, possession, storage and sale of arrack. Under S.8, no person shall manufacture or import, export, transport, transit, possess, storage, distribute, bottle or sell arrack in any form. Therefore, by virtue of S.8 there is a prohibition for possessing arrack in any form came into force w.e.f. 27.3.1996. It was only by amendment Act 16 of 1997, which came into effect on 3.6.1997 subs.(2) of S.8 was inserted after renumbering original S.8 as sub-s.(1) of S.8 providing punishment for contravention of sub-s.(1) of S.8. Therefore, before 3.6.1997, no specific punishment was provided for contravention of the provisions of S.8 as it then stood. Crl. R.P. No.480 of 2005 8 Possession of illicit arrack was on 19.05.1997. In such circumstances, petitioner could only be convicted and sentenced as provided under S.63 of the Abkari Act.” 5. The offence was committed before the commencement of the new Act ie, before 03.06.1997. A perusal of the Abkari Act, it is clear that no specific punishment was provided for the possession of arrack during that period. Analysing the oral evidence, the trial court framed an opinion that the accused committed the offence punishable under Sec.55(a) of the Abkari Act. Therefore, after banning of the arrack by the State of Kerala, possession of such liquor is an offence punishable under Sec.58 of the Abkari Act. When a person is charge sheeted under Sec.58 of the Abkari Act, the prosecution has to prove that the accused was in possession of illicit liquor with the knowledge that it is illicit liquor. When there is no averment in the complaint or during the recording of the evidence that the revision petitioner had knowledge about the illicit liquor, a prosecution under Sec.58 also is unsustainable. Therefore, the Division Bench of this Court in Josekutty (supra) held that if Crl. R.P. No.480 of 2005 9 arrack is in possession without knowledge that it is illicit arrack, a conviction under Sec.63 of the Abkari Act alone is maintainable. When there was no specific punishment provided in contravention of the possession of arrack before 03.06.1997, the possession of arrack would only attract the offence under Sec.63 of the Abkari Act. 6. In the result, conviction under Sec.55(a) of the Abkari Act is set aside. Revision Petitioner is convicted under Sec.63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only), in default of payment of fine, simple imprisonment for three months. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence failing which, the learned Magistrate shall issue non bailable warrant forthwith. Revision petition is disposed of accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS/23/06/2016