Jose, S/O Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** **CRL.A.No. 219 of 2011 ( ) --------------------------** ## **IN SC 78/2010 of ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM** **APPELLANT(S)/ACCUSED 1:: -----------------------** **JOSE, S/O.JOSEPH, MANJAKKUNNEL VEEDU, ALANADU BHAGOM, ULLANADU KARA, BHARANANGANAM, VILLAGE, KOTTAYAM DISTRICT.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, PALA, KOTTAYAM DISTRICT,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 219 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04[th] day of July, 2017 ## **J U D G M E N T** The appellant herein is the first accused in S.C.No. 78 of 2010 of the Court of Session, Kottayam. He is the registered owner of the lorry No. KL-5J 8701. The second accused, who faced prosecution along with the the first accused, is said to be the driver of the lorry. 2. The appellant and his driver faced prosecution in the court below on the allegation that on 29.09.2009, they illegally imported huge quantity of Indian Made Foreign Liquor, contained in 419 bottles, from the State of Goa, concealed in a secret chamber under the platform of the lorry. The offence was detected by the Sub Inspector of Police, Pala. He and his party, who came in a private vehicle for detection on the basis of reliable information, happened to inspect the said vehicle which was seen parked at the side of the Edappady-Pavithanam public road, within the limits of the Pala Police Station. While they **Crl.A.No. 219 of 2011** **-2-** were watching the lorry parked at the side of the road, they saw two persons coming on a motor cycle, and taking a bottle from a secret chamber under the platform of the lorry. Immediately, the police party caught them, examined the bottle, and also examined the secret chamber found under the platform of the lorry. Then the Sub Inspector found huge quantity of Indian Made Foreign Liquor in 419 bottles, imported from the State of Goa, having identical labels indicating manufacture in Goa, concealed in a secret chamber. Of the 419 bottles, four bottles of 750 ml capacity contained Honey Bee Rum and the other 415 bottles of 750 ml capacity contained Peters XXX Rum, manufactured in Goa. The huge quantity of liquor was seized by the Sub Inspector along with the lorry and also the motor cycle, as per a mahazar. The properties and the accused were produced at the Police Station where the crime was registered by the Sub Inspector. The Sub Inspector himself investigated the case, and submitted final report in court. **Crl.A.No. 219 of 2011** **-3-** 3. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc-I), Kottayam, for trial and disposal. 4. Both the accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Sections 55(a) & (i) of the Kerala Abkari Act (hereinafter referred to as “the Act”). The prosecution examined six witnesses, and proved Exts. P1 to P12 documents in the trial court. The MO1 to MO4 series of properties were also identified during trial. 5. When examined under Section 313 Cr.P.C., both the accused denied the incriminating circumstances, and projected a defence that they had not illicitly imported any quantity of liquor from Goa, and that they have nothing to do with the liquor bottles seized by the Police in this case. The accused did not adduce any oral evidence in this case. Exts. D1 to D4 documents were marked on their side. **Crl.A.No. 219 of 2011** **-4-** 6. On an appreciation of the evidence, the trial court found the second accused not guilty. Accordingly, he was acquitted. But the first accused was found guilty by the trial court under Sections 55(a) & (i) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for six years each, and to pay a fine of 2₹ lakhs each under the two Sections, by judgment dated 08.02.2011. Aggrieved by the judgment of conviction, the first accused has come up in appeal. 7. When this appeal came up for hearing, the learned counsel for the appellant submitted that the conviction in this case under Section 55(i) of the Act is quite unsustainable because there is no evidence proving the required elements, and as regards the conviction under Section 55(a) of the Act, he submitted that if at all the case stands proved on facts, what is at the best proved is the offence punishable under Section 63 of the Act. He also submitted that any quantity of Indian Made Foreign Liquor **Crl.A.No. 219 of 2011** **-5-** can be possessed in Kerala, and if it is in excess of the permitted quantity, it would be punishable only under Section 63 of the Act. He also practically projected a defence that any quantity of liquor can be brought from other States, on payment of the required tax. On the other hand, the learned Public Prosecutor submitted that this is a clear case of illegal import of Indian Made Foreign Liquor from the State of Goa, though satisfactory evidence is not there under Section 55(i) of the Act, and that illicit import of liquor from another State in violation of Section 6 of the Act is punishable under Section 55(a) of the Act. 8. PW6 is the Sub Inspector who detected the offence in this case. He conducted the investigation, and also submitted final report in court. His evidence is that when he inspected the lorry No. KL-5J 8701 on suspicion, he found a secret chamber under the platform of the lorry, and when he opened it and examined, he found huge quantity of Indian Made Foreign Liquor in 419 bottles illicitly imported **-6-** ## **Crl.A.No. 219 of 2011** from the State of Goa. His evidence is quite consistent and definite that identical labels were seen on all the 419 bottles indicating that every bottle contained Indian Made Foreign Liquor manufactured in the State of Goa. The secret chamber was examined by PW5, who is an automobile mechanic. But in court, he did not support the prosecution. It is not known for what purpose, the prosecution examined this witness. What is important is whether there was any secret chamber under the platform of the lorry, and whether that chamber contained any quantity of liquor. To prove this aspect, an automobile mechanic need not be examined. PW2 is the local Village Officer who came to the spot of detection as requested by the Sub Inspector, and the seizure was witnessed by this Village Officer. This witness has given clear evidence fully corroborating the evidence of PW6 regarding the seizure of 419 bottles of Indian Made Foreign Liquor from a secret chamber found under the platform of the lorry. **Crl.A.No. 219 of 2011** **-7-** 9. The prosecution case is that the appellant herein is the registered owner of the lorry. The appellant would not dispute this fact. The Ext.P9 registration particulars also will show that the first accused is the registered owner of the lorry wherein, huge quantity of liquor was seen by the Sub Inspector. Now, it is for him to explain how huge quantity of Indian Made Foreign Liquor manufactured in Goa happened to be seen in his lorry. Of course, the court below acquitted the second accused on the benefit of doubt because, the Sub Inspector and his party had not admittedly seen the second accused driving the lorry. Both the accused were seen near the lorry, which was kept stationary at the side of the road. 10. Seizure of huge quantity of Indian Made Foreign Liquor contained in 419 bottles stands well proved in this case by the evidence of PW6, corroborated by that of PW2, the Village Officer. The evidence given by these two witnesses is quite blemishless, and it is fully acceptable. ## **Crl.A.No. 219 of 2011** **-8-** Their evidence convincingly proves the seizure of 415 bottles of Peters XXX rum (750 ml each), and 4 bottles of Honey Bee Rum (750 ml each) manufactured in the Sate of Goa. Now, the question is whether the owner of the lorry can be punished under Section 55(a) of the Act. 11. The learned counsel cited the decision of this Court in **Mohanan** v. **State of Kerala** (2007 (1) KLT 845), and submitted that for a conviction under Section 55(a) of the Act, the accused must have possessed the quantity of liquor as part of import or export. Here, the prosecution allegation is that the accused illegally imported huge quantity of liquor from the State of Goa. In **Mohanan** 's case (supra), this Court clarified that possession of liquor made punishable under Section 55(a) of the Act is possession in connection with illicit import or export or transport. This is a case where huge quantity of liquor made in Goa was seen in the lorry belonging to the appellant. He has no explanation how this much quantity of liquor bottles happened to be in **Crl.A.No. 219 of 2011** **-9-** his lorry, if not on import from the State of Goa. Section 6 of the Act contains a prohibition that nobody shall import any quantity of liquor from another State without previous permit, and without payment of the required tax. The argument made by the learned counsel is that any quantity of Indian Made Foreign Liquor can be imported from other States, and he finds justification in **Ravi** v. **State of Kerala** (2011 (3) KLT 353). The spirit and purport of the said decision is not that any quantity of liquor brought from any other State can be possessed in the State of Kerala. The said decision will not, in any manner, authorise illicit import of liquor made in violation of Section 6 of the Act. Illicit import of liquor from other States in violation of Section 6 of the Act is punishable under Section 55(a) of the Act. 12. The evidence in this case unerringly proves that the huge quantity of Indian Made Foreign Liquor manufactured in the State of Goa was found inside a secret chamber attached to the appellant's vehicle. Evidence ## **Crl.A.No. 219 of 2011** **-10-** shows that the said vehicle was coming from the State of Goa carrying paint meant for supply to a dealer in the State of Kerala. The said dealer was examined as PW3. He proved the consignment in his name. Of course, huge quantity of paint was also seen on the platform of the lorry meant for supply to PW3. All the liquor bottles had clear labels indicating that the liquor was manufactured in the State of Goa. Nothing more is required to prove that the huge quantity of liquor contained in 419 bottles was illegally imported by the accused, and transported in his vehicle from the State of Goa. This is punishable under Section 55(a) of the Act. PW6 has given evidence regarding the sampling process also. On an analysis at the laboratory, the liquid in every sample bottle was identified as Indian Made Foreign Liquor. The defence did not argue any legal infirmity in the process of detection, or in the process of investigation. 13. Of course, it is true that the whole exercise in this case was done by PW6. But that alone cannot be a **Crl.A.No. 219 of 2011** **-11-** ground to acquit the accused. What is important is whether any sort of prejudice was caused to the accused by the one man show made by the Sub Inspector. There is nothing to show that any sort of prejudice was caused to him by anything done by the Sub Inspector in the process of detection, or in the process of investigation. Some defects in the arrest memo cannot at all be a ground to acquit the accused when the case on facts stands very well proved beyond any reasonable doubt. Such procedural or technical infirmities will stand on the way of conviction only when the evidence as a whole as regards the factual aspects is either confusing or doubtful. I find that the prosecution has very well proved the offence punishable under Section 55(a) of the Act against the appellant. 14. Of course, it is true that there is no satisfactory material or evidence to prove the offence under Section 55(i) of the Act. What the prosecution probably meant is that the liquor was brought from the State of Goa ## **Crl.A.No. 219 of 2011** **-12-** by the accused for sale here. Simply that the accused brought it for sale is not punishable under Section 55(i) of the Act. There is nothing to show that the accused was found selling any quantity here, and I find nothing constituting the essentials of the offence punishable under Section 55(i) of the Act. What is clearly proved is illicit import of liquor from another State. I find that the conviction under Section 55(i) of the Act in this case is liable to be set aside. 15. Now the question of sentence. The jail sentence imposed by the court below under Section 55(a) of the Act is rigorous imprisonment for 6 years, and the fine imposed is 2 lakhs. The accused was aged 50 years as on₹ the date of detection. No previous crime of similar nature is seen reported against him. Though the way in which the accused illegally transported the huge quantity will show his involvement in such offences on earlier occasions also, the prosecution did not produce any material to prove such ## **Crl.A.No. 219 of 2011** **-13-** complicity or involvement. Anyway, on a consideration of all the relevant aspects, I feel that the minimum fine sentence, and also rigorous imprisonment for two years will be the adequate and reasonable sentence in this case. In the result, this appeal is allowed in part. The appellant is found not guilty of the offence under Section 55 (i) of the Act. Accordingly, the conviction and sentence against him under the said Section in S.C.78 of 2010 of the court below will stand set aside. But, the conviction against the appellant under Section 55(a) of the Act is confirmed in appeal. However, the jail sentence imposed by the court below under Section 55(a) of the Act will stand reduced to rigorous imprisonment for two years, and the fine sentence will stand reduced to 1 lakh, which is the minimum.₹ Proportionately, the default sentence also will stand reduced to rigorous imprisonment for three months. Sd/ds 05.07.2017 **P.UBAID** //True copy// **JUDGE** P.A. to Judge