Jinesh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 CRL.A.No. 110 of 2011 ( ) -------------------------SC 355/2009 of ADDITIONAL DISTRICT COURT (ADHOC-1), THODUPUZHA APPELLANT/ACCUSED: --------------------------------- JINESH, S/O.KUNJUMON, FAIRFIELD DIVISION LAYAM, TYFORD ESTATE FARIFIELD KARA, ELAPPARA VILLAGE, IDUKKI DISTRICT BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.S.PRAVEEN RESPONDENT/COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.110 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of January 2016 ## O R D E R The accused in S.C. No.355 of 2009 on the files of the Additional Sessions Court (Adhoc-1) filed this appeal challenging the conviction and sentence passed by the court below under Section 55(a) and 55(i) of the Abkari Act. ## 2. Heard both sides. 3. The prosecution allegation is that on 30.6.2009 at about 11.20 a.m., the appellant was found in possession of four litres of Indian Made Foreign Liquor for the purpose of sale, in contravention of the provisions of the Abkari Crl.R.P.110/2011 : 2 : Act. 4. PW3 detected the offence. He also arrested the appellant on 30.6.2009 at about 11.20 a.m.. The contraband was also seized and sealed by him. He prepared Ext.P1 mahaar in connection with the arrest and seizure of the contraband. Thereafter, the appellant and the contraband articles along with the contemporary records were taken to the police station and thereafter, he registered the crime. The investigation was also conducted by PW3. After completing the investigation, PW3 filed the final report before the court. 5. Before the trial court, PW1 to PW4 were examined and Exts.P1 to P10 and Ext.X1 were marked for the prosecution, besides identifying MO1 to MO3. No Crl.R.P.110/2011 : 3 : evidence was adduced from the side of the appellant. 6. PW1 and PW2 were the independent witnesses examined by the prosecution to prove the occurrence. However, they did not support the prosecution case even though they admitted their signature in Ext.P1 Mahazar. PW3 was the Sub Inspector of Peermade Police station during the relevant period. According to him, while PW3 and Excise party were on patrol duty, they found the appellant carrying a plastic cover on 30.6.2009 at 11.30 a.m. On getting suspicion, the appellant was intercepted and the content inside the plastic cover was inspected. Then it was revealed that the said plastic cover contained four bottles, each bottle having a capacity of one litre each. PW3 opened the bottles and tested the content inside the Crl.R.P.110/2011 : 4 : bottle by smelling and tasting the same. PW3 and others were convinced that the content inside the bottle was Indian Made Foreign Liquor. The appellant was arrested from the spot. The contraband articles were also seized and sealed. Thereafter, Ext.P1 Mahazar was prepared by PW3. 7. PW4 was the thondi clerk of the court, who received the thondi articles on 1.7.2009. PW4 forwarded the sample to the laboratory for examination. 8. It is true that PW1 and PW2 did not support the prosecution case. However, they admitted their signature in Ext.P1 mahazar. The solitary evidence to prove the seizure of the contraband is the evidence of PW3. I have gone through the evidence of PW3 and I am convinced that Crl.R.P.110/2011 : 5 : the evidence of PW3 is natural, credit-worthy and hence acceptable. No circumstance has been brought to my notice to indicate that the evidence of PW3 suffers from any infirmity. There is no allegation that PW3 had any illmotive to falsely implicate the appellant in a case like this. The evidence of PW3 would prove the seizure of the contraband from the possession of the appellant on 30.6.2009 at 11.30 a.m. The arrest of the appellant was also proved from the evidence of PW3 coupled with Ext.P2 arrest memo. The contraband was also produced before the court without any delay. Ext.P10 report of chemical analysis would show that the sample analysed in the laboratory contained 42.65% by volume of ethyl alcohol. In the said circumstances, I am of the considered view that Crl.R.P.110/2011 : 6 : the evidence of PW3 can be acted upon to hold that the appellant was found in possession of four bottles of Indian Made Foreign Liquor as alleged by the prosecution. 9. The court below convicted the appellant under Section 55(i) of the Abkari Act relying on the evidence of PW3. PW3 did not state that he had witnessed the appellant selling the contraband item. There is absolutely no material before the court to prove that the appellant was seen selling the contraband or the appellant attempted to sell the contraband. Merely because the appellant had Rs.190/- in the pocket of his shirt, it cannot be said that the said amount is the sale proceeds of the liquor. In the absence of any such evidence, it has to be held that the prosecution failed to prove that the appellant committed the Crl.R.P.110/2011 : 7 : offence under Section 55(i) of the Abkari Act. 10. The evidence on record would show that the appellant was in possession of four litres of Indian Made Foreign Liquor. Now the question is as to whether the offence under Section 55(a) of Abkari Act is attracted in this case or not. 11. A Division Bench of this court in Mohanan v. State of Kerala [2007 (1) KLT 845] held that Section 55(a) of the Abkari Act is applicable only when persons illegally import or transport liquor or in possession of liquor while illegally importing. In this case, there is no evidence to show that the appellant was in possession of the liquor in the course of illegal import. Therefore, the offence under section 55(a) of the Abkari Act is not attracted in this case. ## Crl.R.P.110/2011 : 8 : 12. The permissible quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was three litres. Therefore, the appellant was no doubt in possession of Indian Made Foreign Liquor in excess of quantity than what was permissible under law during the relevant period. The prosecution does not have a contention that the contraband involved in this case was not purchased from the State Beverages Corporation. Therefore, the only offence committed by the appellant is the offence under Section 63 of the Abkari Act. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the court below can be modified and reduced to imprisonment till the rising of the court and a fine of Rs.5,000/- (Rupees five thousand Crl.R.P.110/2011 : 9 : only) and in default to simple imprisonment for one month to secure the ends of justice. Accordingly, I order so. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the court below on 20.4.2016 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/..29.1.2016_ _// True Copy //_ _PA to Judge_