Joy Philip and P.K. Saji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** **Crl.Rev.Pet.No.1829 OF 2013** **AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN CRA 241/2012 DATED 29-08-2013 OF ADDITIONAL SESSIONS COURT (ADHOC-III), KASARAGODE CONFIRMING THE JUDGMENT DATED 18-10-2012 IN SC 172/2008 OF ASSISTANT SESSIONS COURT, HOSDRUG** ## **PETITIONERS/APPELLANTS/ACCUSED:** **1 JOY PHILIP AGED 55 YEARS S/O PHILIP, APATHAKUNNEL HOUSE, KALICHAMARAM, KARINDALAM 2 P.K. SAJI AGED 34 YEARS S/O KARUNAKARAN, PAMBAKKAL HOUSE, KOYITHATTA, KALICHAMARAM, KARINDALAM** **BY ADVS. SRI.I.DINESH MENON SRI.L.RAJESH NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, RAJAPURAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682031** ## **SMT MAYA M N -PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON 02.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1829/2013 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1829 of 2013 ------------------------------------------Dated this the 2[nd] day of July, 2020 ## **O R D E R** The revision petitioners are the first and the third accused in the case S.C.No.172/2008 on the file of the Court of the Assistant Sessions Judge, Hosdurg. 2. The prosecution case is as follows: On 15.10.2007, at about 14.30 hours, the Sub Inspector (PW1) of Rajapuram police station got information that Indian Made Foreign Liquor (for short 'IMFL') made in Karnataka was being transported in the autorickshaw KL-14D/4586. The Sub Inspector and the police party with him proceeded for verifying it. When they reached the place Chiramkadavu, at about 15.15 hours, they found the autorickshaw KL-14D/4586 coming from the opposite side. PW1 got down from the police jeep and gave signal to stop the autorickshaw. The autorickshaw was stopped at the side of the Crl.R.P.No.1829/2013 3 road. The driver of the autorickshaw tried to run away and escape from the place. However, the police party chased him and apprehended him. Two persons were found sitting in the rear seat of the autorickshaw. Two bags were found between their legs in the platform of the autorickshaw. The bag placed below the person who was sitting on the left side of the autorickshaw contained 10 bottles, each having capacity of 750 ml., of Karnataka made IMFL. The bag found below the person who was sitting on the right side of the autorickshaw contained 24 bottles, each having capacity of 375 ml., of Karnataka made IMFL. The persons who were travelling in the autorickshaw had no permit to import or transport the liquor. The second accused was the driver of the autorickshaw. The first and the third accused were the persons who were travelling in the autorickshaw. PW1 arrested them and took samples of liquor and seized the liquor bottles and the samples. 3. On returning to the police station, PW1 registered case against the accused as Crime No.169/2007 of Rajapuram police station. He also conducted the investigation of the case and filed Crl.R.P.No.1829/2013 4 final report against the accused for the offence punishable under Section 55(a) of the Abkari Act. 4. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and claimed to be tried. The second accused absconded and only the first and the third accused faced trial. 5. The prosecution examined PW1 to PW6 and marked Ext.P1 to P13 documents. No evidence was adduced by the first and the third accused. 6. The trial court found the first and the third accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder and sentenced them to undergo simple imprisonment for a period of two years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months each. 7. The first and the third accused filed Crl.A.No.241/2012 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against them by the trial court. Crl.R.P.No.1829/2013 5 The appellate court confirmed the conviction as well as the sentence against them and dismissed the appeal. 8. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against them by the courts below, the first and the third accused in the case have filed this revision petition. 9. Heard. Perused the records. 10. PW1 is the Sub Inspector who detected the offence. He has given evidence in detail regarding the occurrence. PW2 was the Head Constable who was in the police party led by PW1. His evidence corroborates the testimony of PW1 regarding the material particulars of the occurrence. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P12 is the chemical examination report received in respect of the samples of liquid which were sent for analysis. It shows that the samples of liquid sent for analysis contained ethyl alcohol of different strength. Crl.R.P.No.1829/2013 6 12. On a perusal of the judgments of the courts below and the evidence adduced by the prosecution, I find it difficult to sustain the conviction entered against the petitioners under Section 55(a) of the Abkari Act. The reasons are as follows. 13. The evidence of PW1 is that, he took samples of the liquid and sealed the sample bottles and affixed label, bearing the signature of himself and the witnesses and the accused, on them. He has stated that he produced the sample bottles before the court as per Ext.P6 property list. There was no undue delay in producing the samples before the court. The description of the samples given in the property list and Ext.P7 forwarding note also tallies with the description of the samples seized by PW1 at the spot of the occurrence. Therefore, there cannot be any doubt with regard to the fact that the samples which were forwarded for analysis were the samples allegedly taken at the spot of the occurrence by PW1. 14. The finding of the trial court is that the prosecution has proved beyond reasonable doubt that the accused had imported the liquor from Karnataka. Section 55(a) of the Abkari Act states Crl.R.P.No.1829/2013 7 that, whoever in contravention of the Act or of any rule or order made under the Act, imports, exports, transports, transits or possesses liquor or any intoxicating drug, shall be punished. Section 6 of the Abkari Act provides that, no liquor or intoxicating drug shall be imported except with the permission of the Government and unless the duties, taxes, fees etc. due to the Government have been paid. Rule 9 of the Foreign Liquor Rules states that, no foreign liquor shall be imported into the State except under a permit issued in that regard. As per Section 3(16) of the Act, 'import' means to bring into the State. 15. In the instant case, there is no evidence to find that the petitioners themselves had bought and brought the liquor from Karnataka to Kerala. 16. The question is whether mere possession of liquor manufactured outside the State would amount to proof of import. This question was considered in **Narayanan Nair v. State of Kerala : 2011 (3) KHC 472 : 2011 (3) KLT 722** . It has been held therein that, in order to prove the offence under Section 55(a) read with Rule 9, the prosecution must prove that accused Crl.R.P.No.1829/2013 8 was in possession of IMFL and that the accused had 'brought' IMFL into the State of Kerala from some place which lies outside the State. It was further held that the act of 'bringing' is different from being in 'possession'. A person found to be in possession may not be the one who has brought the liquor into the State and therefore, only for the reason that a person is found to be in possession of the liquor, it cannot be concluded that he himself had brought the article into the State. ## 17. In **Tippu Mohammed v. State of Kerala : 2015 (1)** **KLD 59** , it was held that in the absence of any evidence to find that the liquor allegedly possessed by the accused was imported in violation of the provisions of the Act, merely for the reason that there is a writing in the mahazar or that the labels on the bottles contained a description 'for sale in Karnataka', it cannot be found that the prosecution has discharged its burden of proving that the accused had imported foreign liquor. 18. A Division Bench of this Court, in **Surendran v. Excise Inspector : 2004 (1) KLT 404** , clarified the position of law that, in order to attract the offence under Section 55(a) of the Crl.R.P.No.1829/2013 9 Abkari Act, the possession of liquor must be in the course of import, export, transport or transit. 19. The question, what exactly is the offence punishable under Section 55 of the Abkari Act, was considered by another Division Bench in **Mohanan v. State of Kerala : 2007 (1) KHC 752 : 2007 (1) KLT 845** . The Division Bench re-iterated that Section 55(a) of the Act is applicable only when persons illegally import or transport liquor or when they are in possession of liquor while illegally importing. It was held that sub-clause (a) of Section 55 deals with illegal imports and exports of liquor or intoxicating drugs or transport or possession of such liquor covered under import or export. 20. In the instant case, even if it is assumed that the two accused were found in possession of total quantity of 16.500 litres of IMFL manufactured in Karnataka, there is no evidence to find that the accused themselves had purchased the liquor from Karnataka and brought it from there to Kerala. Therefore, import of liquor by the accused is not established by the prosecution. Since there is no allegation that the liquor found in the Crl.R.P.No.1829/2013 10 possession of the accused was illicit liquor, it cannot also be found that the accused had illegally transported liquor. 21. It cannot also be found that the petitioners have committed an offence punishable under Section 63 of the Abkari Act for possessing IMFL in excess of the quantity prescribed. The reason is that the prosecution failed to produce in the trial court the bulk quantity of the liquor allegedly seized from the possession of the accused. 22. Learned Public Prosecutor has contended that the bottles of liquor seized were produced before the Assistant Excise Commissioner and inventory was prepared by him and that the Magistrate has certified the inventory and therefore, there was no necessity to produce the bulk quantity of the liquor bottles before the trial court. 23. If the seizure of the contraband substance is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that samples taken from and out of the contraband material Crl.R.P.No.1829/2013 11 were kept intact and that the seals were intact when the samples were submitted for forensic examination and that the report of the forensic experts shows the potency, nature and quality of the contraband material and that the essential ingredients constituting an offence are made out based on such material (See **State Rajasthan v. Sahi Ram : AIR 2019 SC 4723** ). If the seizure is otherwise not in doubt, there is no requirement that the entire material shall be produced before the Court during the trial of the case and marked as material object [See **Than Kunwar v. State of Haryana: 2020 (1) KLD 476 (SC) : 2020 (2) KLT OnLine 1135 (SC)** ]. 24. Section 53A of the Abkari Act deals with preparation of inventory, by the authorised officer, of the liquor or other articles seized under the Act and certification of the inventory by the Magistrate concerned. Section 53A(5) of the Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, any Court trying an offence under the Act, shall treat the inventory certified by the Magistrate as primary evidence in respect of such offence. Crl.R.P.No.1829/2013 12 25. The State Government has issued notification SRO No.740/2002 as G.O.(P) No.139/2002/TD dated 19.09.2002 in exercise of the powers conferred by Section 53A(1) of the Abkari Act. As per this notification, spirit, Indian Made Foreign Liquor and arrack are the three kinds of liquor specified to be disposed of by the authorised officer as provided in Section 53A of the Act. 26. The very purpose of the provisions contained in Section 53A of the Abkari Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorised officer and the Magistrate follow the mandate under Section 53A of the Act strictly and scrupulously, it is not necessary for the prosecution to produce the bulk quantity of seized liquor before the Court during the trial of the case and mark it as material object. Then the certificate issued by the Magistrate in respect of the inventory of liqour and the list of samples, if any, drawn in his presence shall be treated by the court as primary evidence of the offence. Crl.R.P.No.1829/2013 13 27. However, when the procedure under Section 53A of the Act is not adopted and strictly followed and when the bulk quantity of liquor is not produced also before the court and when no evidence is also adduced to show that the bulk quantity of liquor has been destroyed or otherwise disposed of, seizure of such liquor itself becomes a doubtful matter. The accused will then be entitled to take advantage of such doubt. 28. In the instant case, Ext.P8 is the inventory prepared and Ext.P10 is the certificate issued by the learned Magistrate under Section 53A(2) of the Abkari Act. Ext.P8 inventory is not prepared by the Assistant Excise Commissioner, who is the authorised officer. Ext.P8 inventory is prepared and signed by the Sub Inspector who has detected the offence. The Assistant Excise Commissioner has only countersigned it. PW1 Sub Inspector has also given evidence that he prepared the inventory and produced the liquor before the Assistant Excise Commissioner. 29. In **Chandran @ Chandrasekharan v. State of Kerala : 2016 (5) KHC 650: 2016 (4) KLT 727** , this Court has held Crl.R.P.No.1829/2013 14 that, when the inventory under sub-section (2) of Section 53A of the Act is prepared by an officer not authorised under the Act, it cannot be acted upon and then the entire contraband should be produced before the Court. 30. Section 53A(2) of the Act mandates that the inventory shall be prepared by the authorised officer. Of course, it is not necessary that he shall prepare the inventory in his own handwriting or that the physical act of writing or making it shall be done by himself. But, he shall be the author of the inventory prepared. He shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the Magistrate for certification. It is for the authorised officer to consider and include in the inventory the particulars necessary to identify the liquor. 31. The position of law in this regard has been clarified by this Court in **Balakrishna Rai v. State of Kerala** ( **2020 (3) KHC 286: 2020 (1) KLD 716 : 2020 (3) KLT 727** ). 32. In view of the infirmity pointed out above in the inventory certified by the learned Magistrate, it cannot be Crl.R.P.No.1829/2013 15 accepted as primary evidence in respect of the offence allegedly committed by the petitioners. In such a situation, non-production of the bulk quantity of liquor in the trial court creates doubt as to seizure of such quantity of liquor from the possession of the accused. Then, the dictum laid down by the Apex Court in **Sahi Ram** (supra) and **Than Kunwar** (supra) with regard to nonproduction of seized material before the trial court, does not come to the rescue of the prosecution. 33. When the inventory certified by the Magistrate is eschewed from evidence, there is no reliable evidence to find that bulk quantity of liquor was seized from the possession of the accused. Evidence is only that the samples which were sent for analysis were seized from the possession of the accused. It would only show that the petitioners were in possession of permissible quantity of IMFL. 34. The trial court and the appellate court have not taken into consideration the aforementioned vital aspects while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the Crl.R.P.No.1829/2013 16 petitioners cannot be sustained. The petitioners/accused are entitled to be acquitted. 35. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioners, who are the first and the third accused in the case, by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioners, who are the first and the third accused in the case, are found not guilty of the aforesaid offence and they are acquitted. The bail bond executed by them is cancelled and they are set at liberty. Fine amount, if any, remitted by them shall be refunded to them. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** **True Copy PS to Judge**