Kannan @ Karunan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **CRL.A.No. 982 of 2004 ( )** **-------------------------AGAINST THE JUDGMENT IN SC 232/2002 of ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC)-II, KOZHIKODE DATED 01-06-2004** **APPELLANT(S)/ACCUSED:** **--------------------** **KANNAN @ KARUNAN, KALLUKETTIYA PARAMBATH, POST MUTTUNGAL, VIA.VATAKARA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.982 of 2004 ---------------------------------------------Dated this the 24[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.232/2002 of Additional District and Sessions Judge Fast Track (Adhoc-II), Kozhikode u/s.55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. The charge against the accused is that on 19.2.1998 at 10.35 a.m., the accused was found in possession of 12 bottles of Indian Made Foreign Liquor each containing 750ml in a service bus by name 'Thrissul' bearing Registration No.KL 13/6195. The offence was detected by the Excise Inspector, Quilandy. While the vehicle was plying through the road, the Excise Inspector, Quilandy stopped the bus in Vanmugham amsom, Veemangalam Desom in Quilandy Taluk and inspected the bus and seized the articles, after preparing a 2 Crl. Appeal No.982/2004 mahazar. The accused was arrested and the contraband articles were seized, reaching at the Excise Office, they registered a crime and after completing investigation, the Excise Inspector, Quilandy Range filed a charge before Judicial First Class Magistrate, Quilandy from there the case was committed to Sessions Court, Kozhikode. Subsequently, it was made over to the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode. 2. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P9. MO1 and MO2 were marked as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of l lakh, in₹ default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, the accused preferred Crl. Appeal No.982/2004 3 this appeal. 3. The learned counsel for the appellant contended that no evidence has been adduced by the prosecution to show that MO1 and MO2 were seized from the possession of the appellant. The independent witnesses present there who travelled in the bus were not examined to prove the alleged seizure. Therefore, mere arrest of the accused itself is not sufficient to fasten the criminal liability upon the appellant. The learned counsel relied the decision of this Court in **Narayanan Nair** v. **State of Kerala** [2011 (3) KHC 472] and **Tippu Mohammed** v. **State of Kerala and another** [2014 KHC 852]. 4. The learned Public Prosecutor strongly opposed the above contention and contended that detection and seizure were proved and there is no reason to disbelieve the evidence of the excise officials. 5. The occurrence was deposed by PW1, Excise Inspector, Quilandy Range. His evidence shows that on 4 Crl. Appeal No.982/2004 19.2.1998, he prepared a search memorandum, thereafter searched the vehicle KL-13/6195 plying from Thalassery to Kozhikode in front of Excise Range Office, Quilandy. On inspection, he found the accused sitting on the right side of the back seat of the bus carrying a plastic bag on his lap. During inspection, it was revealed that it contained 12 bottles of New Master XXX Rum each containing 750ml. He tasted the content and identified it as foreign liquor. He took one bottle as sample and sealed at the place of occurrence. The remaining bottles were sealed at the place of occurrence after preparing a mahazar. The accused was arrested. Ext.P1 is the search memorandum. Ext.P2 is the arrest memo. Ext.P3 is the seizure mahazar. Ext.P4 is the search list, reaching at the Excise Office, he registered a crime. Ext.P5 is the crime and occurrence report. The accused was produced before Court as per Ext.P6 remand report. The contraband articles were produced before Court as per Ext.P7 property list. Ext.P8 Crl. Appeal No.982/2004 5 is the forwarding note and Ext.P9 is the chemical analysis report. PW1 identified MO1 series and MO2. Even though PW1 was cross examined by the defence counsel, nothing has been brought out to discredit the evidence of PW1. 6. The independent witness, PW4, who was the bus driver, did not support the case. But, PW2 Preventive Officer reiterated the same version given by PW1 and supported the prosecution case. PW3, the Excise Inspector completed the investigation and laid charge before Court. He obtained Ext.P10 sketch and site plan. On a close scrutiny of the evidence, it is found that the accused was in possession of foreign liquor, but he has not produced any bill to show that it was purchased from the KSBC. 7. Section 63 of the Abkari Act reads as follows: “63. For offences not otherwise provided for:- Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such wilful Crl. Appeal No.982/2004 6 act or omission with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both. This Court in **Raman** v. **State of Kerala** [2007 (4) KLT 223] held that possession of liquor in excess of prescribed quantity amounts to violation of provision of Foreign Liquor Rules and attract punishment u/s.63 of the Abkari Act. Here, bill was not produced in the trial Court and no explanation had been made by the appellant. Even then, from the report, it is found that only case arose is that there was no labels of the KSBC in the bottles. Here, when excess quantity of foreign liquor is seized from the accused, he committed the offence u/s. 63 of the Abkari Act. In the result, the conviction and sentence passed by the learned Additional Sessions Judge, Kozhikode u/s.55(a) of the Abkari Act are set aside and the appellant is convicted u/s.63 of the Abkari Act and sentenced to pay a fine of 5,000/-, in default of payment of fine, simple₹ Crl. Appeal No.982/2004 7 imprisonment for three months. The appellant is directed to surrender in the trial Court to undergo the modified sentence forthwith, failing which the learned Additional Sessions Judge, Kozhikode shall issue non bailable warrant against the accused. Crl.Appeal is disposed of. ## **P.D. RAJAN, JUDGE.** acd