Eramankandi Baiju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **CRL.REV.PET.NO. 1400 OF 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.635/2001 OF SESSIONS COURT, KOZHIKODE DATED 18-06-2004** **AGAINST THE JUDGMENT IN CC NO.33/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KOYILANDY DATED 30-10-2001** **------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:: -----------------------------------------** **ERAMANKANDI BAIJU, S/O. CHEKKOTTI, RESIDING AT KEZHARIYUR AMSOM DESOM, KEEZHARIYUR, KOYILANDY.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT(S)/COMPLAINANT & STATE::** **-----------------------------------** **1. STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KOYILANDY.** **2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. Rev. Petition No.1400 of 2005 --------------------------------Dated this the 3[rd] day of October, 2016** ## **O R D E R** This revision petition is filed by the accused against the judgment in Criminal Appeal No.635 of 2001 of the 1[st] Additional Sessions Judge, Kozhikode. He was charge sheeted in C.C. No.33 of 1998 by the Judicial First Class Magistrate Court, Koyilandy under Sec.55(a) of the Abkari Act and convicted and sentenced to simple imprisonment for six months and fine of Rs.25,000/- in default, simple imprisonment for three months. Against that, he preferred the above appeal before the Sessions Court, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that the accused preferred this revision petition. 2. The charge against the accused is that on 27.11.1996 at 8.00 a.m., the accused was found in possession of two litres of arrack in a can while he was proceeding though the west of the residential house of Valiyapurath Babu in Keezhariyur Village in Koyilandy Crl. Rev. Petition No.1400 of 2005 2 Taluk by the Preventive Officer, Perambra. The contraband articles were seized and the accused was arrested and produced before the Excise Inspector, Koyilandy. After completing investigation, he filed a report in the trial court. In pursuance of trial, prosecution examined PW1 to PW4, marked Exts.P1 to P5 and admitted MO1 can as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Learned counsel appearing for the revision petitioner submitted that there is delay of five days in producing the seized article before the court. The sample was produced in the Chemical Examination Lab after one year. Therefore, the accused is entitled to get the benefit of doubt. 4. Learned Public Prosecutor submitted that the seized articles were produced before the court on 28.11.1996 and no reason to doubt the credibility of the chemical examination result and seizure. Crl. Rev. Petition No.1400 of 2005 3 5. While averting to the argument, I have examined the oral and documentary evidence in this case. The offence was detected by PW1, Preventive Officer. His evidence shows that on 27.11.1996 at 8.00 a.m., he detected the offence while he was conducting patrol duty. He was conducting patrol duty at Koyilandy Taluk and reached at Keezhariyur desom and proceeding through the road the accused was found carrying MO1. He inspected MO1 and detected arrack in it. He took 180 m.l. as sample and prepared Ext.P1 mahazar. The accused was arrested and enlarged on bail. The contraband articles were produced before the Excise Inspector. Ext.P2 is the FIR. PW2 supported the evidence of PW1. PW3 an independent witness identified the signature in Ext.P1 but he did not see the incident. PW4 registered Ext.P2 occurrence report. 6. PW4 re-registered the crime as per Ext.P3 crime and occurrence report on the basis of Ext.P2 occurrence report. He produced the contraband articles before Court, from there it was forwarded to the chemical Crl. Rev. Petition No.1400 of 2005 4 examiner's lab. PW4 identified MO1 and Ext.P4 forwarding note. Ext.P5 is the chemical analysis report. The incident occurred before commencement of the new Abkari Act, i.e., 3.6.1997. The allegation against the revision petitioner was that he was in possession of 2 litres of illicit arrack. Possession of illicit liquor with the knowledge is an offence u/s.58 of the AbkariAct. The trial Court framed charge u/s.55(a) of the Abkari Act. Therefore, the charge u/s.55(a) of the Abkari Act is unsustainable in law. ## 7. Apex Court in **Jose kutty v. State of Kerala** ## **[2013 (a) KLT 434]** held as follows: “7. The charge against the petitioner was under S.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 S.55, though must be in the course of import or 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 Crl. Rev. Petition No.1400 of 2005 5 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 the 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's case (supra) 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 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 ## Crl. Rev. Petition No.1400 of 2005 6 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 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 upto 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 Crl. Rev. Petition No.1400 of 2005 7 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 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. 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.” We are in agreement with the said view. Crl. Rev. Petition No.1400 of 2005 8 Therefore, there is no allegation that the petitioner was in possession of the illicit liquor with the knowledge that it is illicit liquor. In such circumstances, possession of liquor with the knowledge that it is illicit liquor cannot be assumed from the above evidence. Hence, in the absence of such evidence, the conviction u/s.55(a) of the Abkari Act passed by the Judicial First Class Magistrate Court, Koyilandy is set aside and the revision petitioner is convicted u/s.63 of the Abkari Act and sentenced to pay fine of Rs.2,000/- in the Judicial First Class Magistrate Court, Koyilandy, in default simple imprisonment for three months. He is directed to pay the fine amount within two months from the date of receipt of a copy of this judgment, failing which the learned Magistrate shall issue non bailable warrant against the revision petitioner. Crl.R.P. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/05.10.2016 P.A. To Judge