Karunakaran s/o Kunjikanaran Kaliayath Meethal v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **CRL.A.No.1048 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 301/2003 DATED 07-05-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC)-II, KOZHIKODE** ## **APPELLANT/ACCUSED:** **KARUNAKARAN,S/O.KUNJIKANARAN KALIAYATH MEETHAL, NADERI AMSOM DESOM, KOYILANDY TALUK.** **BY ADV. SRI.SANTHARAM.P** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR. SRI SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **CRL.A.No.1048 OF 2005** ## **JUDGMENT** ## **Dated this the 28th day of May 2020** Above appeal is filed by the accused in Sessions Case No.301/2003 on the file of the Additional District and Sessions Judge Fast Track (Adhoc-II) Kozhikode. The above case was charge sheeted by the Excise Circle Inspector, Perambra, against the accused alleging offence punishable under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 03.06.1998 at about 5.30 p.m, the accused was found in possession of 15 litres of wash in 15 litres plastic pot in house No.1/300 of Arikkulam Panchayath owned by the accused. 3. To substantiate the case, prosecution examined PW1 to PW6. Exts. P1 to P11 are the exhibits marked on the side of the prosecution. The accused himself was examined as DW1. On going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55(g) of the Abkari Act and he was 3 ## **CRL.A.No.1048 OF 2005** sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the accused is directed to undergo simple imprisonment for three months. Aggrieved by the conviction and sentence, this appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that, even if the entire allegations are accepted, no offence under Section 55(g) of the Abkari Act is made out in this case. Moreover, the counsel also submitted that, even if the entire allegations are accepted, there is no evidence in this case to show that the accused was in conscious possession of the contraband articles. The counsel also submitted that, after seizing the contraband article on 03.06.1998, the properties are produced before the court only on 11.06.1998. According to the counsel, there is no explanation for the delay in producing the article. Therefore, it is submitted that the accused is entitled the benefit of doubt on this point also 4 ## **CRL.A.No.1048 OF 2005** in the light of several decisions of this Court. Learned counsel also submitted that, eventhough the seizure of the contraband article in this case was on 03.06.1998, the final report was submitted only on 04.07.2003. There is no explanation for the prosecution regarding the delay in conducting the investigation . 6. The learned Public Prosecutor submitted that the trial court considered all the evidence available in this case and came to the conclusion that the accused committed the offence under Section 55(g) of the Abkari Act. The Public Prosecutor also submitted that, there is nothing to interfere with the well considered judgment of the trial court. 7. After hearing both sides, I think there is some force in the contention raised by the appellant. 8. In this case the alleged seizure was on 03.06.1998 at about 5.30 p.m. Ext.P7 is the property list marked in this case. As per Ext.P7 property list, the property was produced only on 11.06.1998. Office of the learned Magistrate endorsed to the effect that “ since there 5 ## **CRL.A.No.1048 OF 2005** is no sufficient space to keep sub item(1), it may be ordered to keep under the safe custody of Excise Inspector, Koyilandy, for orders”. The learned Magistrate gave an endorsement on the same date below the entry of the office staff. There is nothing to show in Ext.P7 that the properties were produced on 04.06.1998. When the delay in producing the properties were challenged before the official witnesses, they deposed that the properties were produced on the next date of seizure, but it was returned with a direction to produce it subsequently. But there is nothing in Ext.P7 to show that the contraband articles were produced on 04.06.1998 and the same was returned on that day. If the contraband articles are produced on 04.06.1998 and there was a direction to return the thondi articles, definitely that will find a place in Ext.P7 property list. That is not seen in Ext.P7 property list. Therefore, there is no explanation for the delay in producing the contraband articles before the court. 9. This Court in several decisions observed that the 6 ## **CRL.A.No.1048 OF 2005** delay in producing the property before the court is fatal to the prosecution. _**Sukumaran v. State of Kerala [2019 (3) KLT 920], Ravi v. State of Kerala [2011(3) KLT 353] and Vikraman v. State of Kerala [2018 (1) KLT 822]**_ are some of the decisions. In _**Ravi.v's case**_ (supra), this Court observed that, what is enjoin by the statute is only that the seizure of the property should be reported forthwith to the Court. But the Division Bench of this Court observed that “but we hastened to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” 10. In this case, there is absolutely no explanation for the delay in producing the article from 03.06.1998 to 11.06.1998. The explanation given by the official witness cannot be believed. Therefore in this case, the accused is entitled the benefit of doubt on this point itself. 11. Thereafter the counsel for the appellant also 7 ## **CRL.A.No.1048 OF 2005** contended that, no offence under Section 55(g) of the Abkari Act is made out in this case, even if the entire allegations are accepted. The admitted prosecution case is that, 15 litres of wash was seized from the house of the accused. Prosecution has not adduced evidence to show that, the house is occupied by the accused alone. It is true that, one of the witnesses was examined to prove the ownership of the house. Simply because the accused is the owner of the house and the contraband article is seized from the house, there is no presumption that the accused was in conscious possession of the contraband article. Of course, if the prosecution adduced evidence to show that the accused is the owner of the house and there is no other inmates in the house, the burden shift to the accused to prove that he was not in conscious possession of the contraband article. In this case prosecution has not established that, the accused was the only person residing in the house. In such circumstances, it is difficult to conclude that, the accused was in conscious possession of the contraband article. 8 ## **CRL.A.No.1048 OF 2005** 12. Moreover, the charge framed against the accused is under Section 55(g) of the Abkari Act. Section 55(g) of the Abkari Act is extracted hereunder:- - _**“55. For illegal import etc.** Whoever in contravention of this Act or of any rule or order made under this Act._ - _(a) xxxx_ - _(b) xxxx_ - _(c) xxxx_ - _(d) xxxx_ - _(e) xxxx_ - _(f) xxxx_ - _(g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or_ - _[(h) xxxx_ - _[(i) xxxx_ ## _[shall be furnished.-]_ - _[(1) for any offence other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to [ten years and with fine which shall not be less than rupees one lakh and]_ - _(2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both.”_ - [Emphasis supplied] 13. On a reading of Section 55(g) of the Abkari Act, it is clear that, prosecution has to prove that, in contravention of this Act or of any rule or order made under the Abkari Act, the accused uses, keeps or has in his possession any 9 ## **CRL.A.No.1048 OF 2005** materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor. Therefore, a reading of the Section it is clear that, possession of any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor is necessary. There is no dispute that, wash is a material for manufacturing liquor. The question is whether simple possession of wash will attract the offence under Section 55(g) of the Abkari Act?. 14. I am aware of Section 64 of the Abkari Act which says that in prosecution under Section 55 of the Abkari Act it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section, in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or any intoxicating drug, or any such material as ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account. Therefore the 10 ## **CRL.A.No.1048 OF 2005** presumption under Section 64 of the Abkari Act will attract only if possession of the material used for the manufacture of liquor is proved. In other words to attract the presumption under Section 64 of the Abkari Act, the prosecution has to prove that, the accused was in possession of the contraband articles. Unless the basic ingredients of the offence under Section 55 of the Abkari Act is made out by the prosecution, there cannot be any presumption under Section 64 of the Abkari Act. One of the ingredients of Section 55(g) of the Abkari Act is that the accused should be in possession of any material, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor. Simple possession of wash may be punishable under other provisions of Abkari Act. But to attract Section 55(g) of the Abkari Act, the prosecution has to prove that the possession was for the purpose of manufacturing liquor. 15. In Santhosh v. State of Kerala 2007(1) KHC 1032 this Court observed that 11 ## **CRL.A.No.1048 OF 2005** _“ 11. In short, there is no semblance of specific allegation which can indicate that the possession of the articles in question was for the purpose of manufacturing liquor. Possession simpliciter of articles which can be used for the purpose of manufacturing liquor also cannot in the absence of cogent and probative indications be assumed to be possession for the purpose of manufacturing illicit liquor as to justify indictment under S.55(g) of the Abkari Act. I am, in these circumstances, persuaded to agree that this is an eminently fit case where premature termination of the proceedings by invocation of the extraordinary inherent jurisdiction under S.482 of the CrPC shall be justified. Lest, there be any confusion and to disabuse any such incorrect impression which may be carried, I make it clear that it is not the law that possession of such materials by itself will not amount to an offence under S.55(g) of the Abkari Act. The crucial question is whether there is satisfactory allegations or materials to show that such possession was for the purpose of manufacturing liquor. I choose to invoke the jurisdiction under S.482 of the CrPC in this case for the crucial reason that there is no worthwhile allegation or circumstances to indicate or suggest that the possession of the articles in question was for the purpose of manufacturing liquor.”_ **16** . The above judgment will strengthen the position that simple possession of the material for the manufacture of arrack will not attract Section 55(g) of the Abkari Act, unless there is evidence to show that, the accused was in possession of the same for the purpose of manufacture of liquor. Since in this case, I already found that the prosecution failed to prove conscious possession of the wash, I think the benefit of doubt will go to accused. 17. Moreover, the final report in this case was filed only on 04.07.2003, eventhough the alleged seizure was on 12 ## **CRL.A.No.1048 OF 2005** 03.06.1998. Absolutely no explanation is there from the prosecution regarding the delay in investigation. In Chandran v. State [2016(4) KLT 727], this Court observed that delay in investigation in abkari case. 18. Hence, in the light of the fact that, there is delay in producing the property before the Court and in the light of the fact that there is delay in investigation and also in the light of the discussion made above, I think the accused is entitled to get the benefit of doubt. Hence this appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 07.05.2005 in S.C.No.301/2003 on the file of the Additional District & Sessions Judge, Fast Track (Adhoc II), Kozhikode is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant stands cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **hmh**