## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA**
**THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938**
## **CRL.A.No. 185 of 2010 ( )**
## **-------------------------SC.NO. 1601/2002 OF ADDL.SESSIONS COURT (ABKARI CASES), KOTTARAKKARA**
**---------------------------**
## **APPELLANT(S)/ACCUSED A2 & A3:**
**----------------------------------------------------**
**1. GEORGE @ VIJAYAN, S/O.SAMUEL, THAIVILA VEEDU, MYLOMKULAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.**
**2. TITUS, S/O.SAMUEL, CHEMMANNARA VEEDU, MYLOMKULAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.**
## **BY ADV. SRI.K.V.ANIL KUMAR**
## **RESPONDENT/COMPLAINANT:**
**----------------------------------------------**
**STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **BY PUBLIC PROSECUTOR SMT. MAYA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sts**
## **B. KEMAL PASHA, J.**
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Crl. Appeal No.185 of 2010 ````````````````````````````````````````````````````````````` _Dated this the 2[nd] day of June, 2016_
## **J U D G M E N T**
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Appellants are the 2[nd] and 3[rd] accused in SC No.1601/2002 of the Additional Sessions Court (Abkari Cases), Kottarakkara, who stand convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for one year each and to pay a fine of ₹1 lakh each, in default to undergo simple imprisonment for three months each. The 1[st] accused before the court below was acquitted under Section 235 Cr.P.C.
2. The prosecution case is that the appellants were found in possession of 25 litres of arrack at the house of the
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1[st] accused at 12.30 p.m. on 27.01.1999. According to the prosecution, the 1[st] appellant was found pouring arrack from a can of 30 litre capacity to a can of 5 litre capacity held by the 2[nd] appellant inside the house of the 1[st] accused. When the excise party under the leadership of PW1 had reached the nearby house of the 1[st] accused on prior information, the 1[st] accused was seen coming out of the house. On seeing the excise party, he ran away and escaped.
3. The offence was detected by PW1, Excise Inspector, Kottarakkara Excise Range. Samples of 200 ml. each were drawn from the arrack contained in both the cans. The contraband was seized through Ext.P1 mahazar. PW1 registered CR No.8/1999 through Ext.P7 crime and occurrence report. Ext.P8 property list was prepared. The appellants along with the records, properties and the samples were produced before the Judicial First Class Magistrate's Court-I, Kottarakkara on 27.01.1999. As the same was produced before the learned Magistrate at 9.30
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p.m., the learned Magistrate directed the Excise officials to produce the properties and the samples on the next day at 10.30 a.m. PW4, Excise Inspector, Kottarakkara, conducted the investigation. Ext.P11 certificate of chemical analysis was obtained, which shows that one of the samples contained 39.25% and the other sample contained 40.01% by volume of ethyl alcohol. PW4 filed the complaint alleging an offence punishable under Section 8(2) of the Abkari Act.
4. The court below framed charge under Section 55 (a) of the Abkari Act. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P11 were marked. No material objects were identified. On the side of the accused, Exts.D1 to D3 were marked. The court below found the appellants guilty of the offence under Section 55(a) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid.
5. Heard learned counsel for the appellants and learned Public Prosecutor.
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6. The learned counsel for the appellants has argued that no material objects were identified in this case and the same were not produced before court. It is also pointed out that an offence under Section 55(a) of the Abkari Act cannot be attracted in a case like this.
7. It is true that the material objects involved in the case were not identified before the court below. On a perusal of Ext.P8 property list, it seems that there is an endorsement in it made by the learned Magistrate directing the Excise officials to “ _Produce before court at 10.30 a.m. Tomorrow”._ The properties so returned with the direction were, (1) The properties around 21 litres of arrack contained in a white can of 35 litre capacity, (2) Around 4 litres of arrack in a black can of 5 litre capacity and (3) Two bottles of 375 ml. capacity each containing 200 ml. of arrack. It is evident that the said properties were returned to the Excise officials by the learned Magistrate at 9.30 p.m. on 27.01.1999 with a direction to produce it before court at
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## 10.30 a.m. on the next day.
8. The evidence of PW1, PW2 and PW4 are the only evidence available in the case. None of the said witnesses has explained anything regarding the non production of the material objects before the court below. The prosecution has no case that any inventory was obtained in the matter from the Assistant Excise Commissioner.
9. The court below, at the concluding portion of the appendix in the judgment, has stated under the caption 'material objects' that “ _The properties not available for production. Report filed by the Excise Inspector, Kottarakkara dated 15.05.2009_ ”. On a perusal of the case records, it could be seen that such a report is there in the case records. At the same time, the said report was not proved before the court below. The said report says that the material objects were kept in the property room of the excise office as per the orders of the court and the same became
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deteriorated and lost, and therefore, it could not be produced.
10. Apart from such a report, which itself does not reveal as to the details of the orders allegedly passed by the court, no other evidence has been produced before the court below with regard to the same. The order allegedly passed by the court regarding the custody of the property is also not available. The only order available is the endorsement made by the learned Magistrate in Ext.P8 directing for the production of the properties on 28.01.1999. There is no evidence to show as to whether the properties were produced before court on 28.01.1999 at 10.30 a.m. as ordered or whether the same was produced and the same were returned. Matters being so, there is absolutely nothing to show that such material objects were seized from the possession of the appellants.
11. Another aspect is that even though the complaint was filed for the offence under Section 8(2) of the Abkari
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Act, the court below has framed the charge under Section 55(a) of the Abkari Act and convicted and sentenced the appellants for the offence under Section 55(a) of the Abkari Act. There is absolutely nothing to show that the said quantity of liquor was possessed by the appellants during the course of any illegal import, any illegal export or any illegal transport. As per the decisions of the Division Benches of this Court in _**Surendran v. Excise Inspector** [2004 (1) KLT 404],_ _**Mohanan v. State of Kerala** [2007 (1) KLT 845]_ and _**Josekutty v. State of Kerala** [2013 (1) KLT 434]_ , in the above context, an offence under Section 55(a) of the Abkari Act cannot be attracted.
12. From all the above, this Court is satisfied that the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellants are acquitted. The amounts, if any,
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deposited by the appellants as per the orders of this Court when the sentence was suspended, shall be returned to the
respective appellants.
Sd/-
**(B.KEMAL PASHA, JUDGE)**
aks/02/06
_// True Copy //_
_PA to Judge_
