Kochu alias Xavier v. Excise Inspector, Wadakkanchery Range, Thrissur & The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH FEBRUARY, 2008 / 1ST PHALGUNA, 1929 Crl.Rev.Pet.No. 570 of 2000 ---------------------------------(CRA.219/1998 of SESSIONS COURT, THRISSUR CC.823/1996 of JUDL. FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY) .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------KOCHU ALIAS XAVIER, S/O.VARKEY, KOODAKATTIL HOUSE, MANALITHARA VILLAGE OF POST, TALAPPILLY TALUK, THRISSUR – 680 589. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------------ 1. THE EXCISE INSPECTOR, WADAKKANCHERY RANGE, THRISSUR – 680 582. REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. ----------------------------------------------Crl.R.P.NO. 570 OF 2000 ----------------------------------------------Dated this the 20[th] day of February, 2008.** ## **O R D E R** The revision petitioner is the sole accused in C.C.No.823 of 1996 of the Judicial First Class Magistrate Court, Wadakkancherry for the offences punishable under Sections 58 and 55(i) of the Kerala Abkari Act. The trial court convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.25,000/- and in default of payment, he was directed to undergo simple imprisonment for a period of three months. 2. Aggrieved by the above judgment, the petitioner/accused preferred Crl.A.No.219 of 1998 before the Sessions Court, Thrissur which was disposed of by its judgment dated 19.5.2000 by which the conviction was maintained and the substantive sentence of imprisonment imposed under Section 55(i) of the Kerala Abkari Act is reduced to simple imprisonment for a period of one month. The judgment of the trial court was upheld in all other respects. This Crl.R.P.is filed seeking for a direction to call ## **Crl.R.P.No.570 of 2000** ## **:-2-:** for the records relating to Crl.Appeal No.219/98 of the Sessions Court, Thrissur and C.C.No.823/96 of the Judicial First Class Magistrate Court, Wadakkancherry and set aside the conviction and sentence and acquit the petitioner. 3. The prosecution case is that the accused was found stored in his possession illicit Indian made foreign liquor for sale in eight bottles when he was intercepted by the Excise party at 5.30 p.m. on 15.6.96 on the Panchayath road in front of the house of the accused. On seeing the Excise party who were on patrol duty, the accused was found perplexed which generated doubt and as a result, the Excise party intercepted him and on questioning, found that he is in possession of illicit Indian made foreign liquor and accordingly, he was arrested. Ext.P3 is the crime and Occurrence Report in Crime No.7/96 of Wadakkanchery Police Station and Ext.P4 is the crime and Occurrence Report prepared by the Anti Narcotics Special Squad Office and the Excise Range Office, Wadakkanchery in Crime No.16/96. Investigation was conducted and thereafter, final ## **Crl.R.P.No.570 of 2000** ## **:-3-:** report was filed before the court below on the basis of which the trial court took cognizance. During the course of trial, Pws. 1 to 4 were examined from the side of the prosecution and Exts.P1 to P4 were marked as documentary evidence. From the side of the defence, there was neither any witness nor any document. Mos.I to VI were marked as material objects. On appreciation of the evidence and report, the trial court found that the accused was guilty of the offences and he was convicted imposing sentence which is already mentioned above. Challenging the above order of conviction and the sentence passed by the trial court, the petitioner preferred Crl.Appeal before the lower appellate court. By judgment dated 19.5.2000, the Sessions Court, though maintaining the conviction, reduced the sentence to simple imprisonment for a period of one month from six months fixed by the trial court. It is the above judgment of the court below and the conviction and sentence are under challenge in this Crl.Revision Petition. ## **Crl.R.P.No.570 of 2000** ## **:-4-:** 4. I have heard learned counsel for the petitioner as well as the learned Public Prosecutor. The learned counsel submits that there is no independent evidence to substantiate the prosecution allegation. According to counsel, Pws.2 and 3 are the independent witnesses and Pws. 1 and 4 are the Excise Officials. But, Pws.2 and 3 had not supported the recovery. Except Pws.2 and 3, there are no other independent witnesses. Since the prosecution failed to establish the seizure by adducing independent evidence, the counsel submits that the prosecution has miserably failed to establish its case beyond doubt. Counsel pointed out that the prosecution case is that the accused was found in possession of illicit Indian made foreign liquor containing in 7 unopened plastic bottles and also another 200 ml. Indian made foreign liquor in an opened bottle. Counsel invited my attention to the depositions of Pws. 1 and 4. 5. On a perusal of the depositions of Pws.1 and 4, it can be seen that they have taken samples only from the ## **Crl.R.P.No.570 of 2000** ## **:-5-:** broken or opened plastic bottle which contained 200 ml. of Indian made foreign liquor. Even, according to Pws.1 and 4, no sample was taken from the unopened or unbroken plastic bottles which are alleged to have been seized from the possession of the accused. So, according to counsel for the revision petitioner, what the prosecution has proved is that the accused was found in possession of 200 ml. of Indian made foreign liquor and there is no evidence to show that what contained in 7 bottles is liquor. Therefore, according to the counsel, even though the entire prosecution case is admitted as true, not conceded; no offence is disclosed against the petitioner. Counsel submits that possession and use of Indian made foreign liquor is not prohibited and not illegal and what is prohibited is the possession of the excess quantity. Thus, according to learned counsel for the petitioner, no evidence is made out as against the revision petitioner. 6. Per contra, the learned Public Prosecutor submits that the materials and evidence on record show that ## **Crl.R.P.No.570 of 2000** ## **:-6-:** eight bottles of Indian made foreign liquor were seized from the possession of the petitioner and the Excise Authorities took samples from the bottle which was opened and the quantity contained therein is 200 ml. of Indian made foreign liquor. Since the samples were taken from the 200 ml. of Indian made foreign liquor contained in the opened bottle, there was no necessity to take samples from the other bottles which were found in tight. Therefore, the Public Prosecutor submits that the order of conviction and sentence passed by the court below is legal and valid. 7. I have gone through the judgments of the courts below and the material evidence on record. On a reading of the depositions of Pws.1 and 4, it can be seen that they had not chosen to take samples from the 7 bottles which were alleged to have been found in possession of the accused/petitioner, but the sample was taken only from the bottle which is seen opened and which contained 200 ml. of Indian made foreign liquor. It is also seen that Pws.2 and 3, who are independent witnesses, had not witnessed the ## **Crl.R.P.No.570 of 2000** **:-7-:** recovery and they turned hostile to the prosecution. Therefore, there is no independent evidence to prove the seizure of the Indian made foreign liquor from the possession of the petitioner/accused. In the absence of any independent witnesses, regarding the seizure from the possession of the petitioner, it appears to me that it is absolutely necessary to prove the contents of the bottles which are alleged to have been seized from the possession of the petitioner. In the absence of the independent evidence, it is the burden of the prosecution to prove that the material which is alleged to have been contained in the bottles which are seized from the possession of the petitioner is none other than the contraband article. In the absence of any positive evidence to show that the liquid which contained in the unopened bottles which are alleged to have been seized from the possession of the petitioner is the Indian made foreign liquor, it cannot be said that the accused had committed offences punishable under Sections 55(i) and 58 of the Abkari Act. In these circumstances, it is ## **Crl.R.P.No.570 of 2000** ## **:-8-:** relevant to refer a decision of this Court reported in **Krishnankutty** v. **State of Kerala** (2005(3) KLT 568). In the above decision, a learned Judge of this Court held that it is the duty of the prosecution to establish beyond the shadow of doubt that there is violation of a particular provisions of an Act under criminal law. In the above decision, the court has held that the permitted quantity, as notified at the relevant time, was 1.5 litres. PW3, the investigating officer, also speaks of the same. The prosecution had established that the accused possessed only 750 ml. of Indian made foreign liquor. As the content of remaining seven bottles was not having been subjected to chemical examination, the same cannot be treated as liquor. Therefore, 750 ml. being within the permissible limit of 1.5 litres, the possession thereof will not be an offence. Same is the position in the present case. Pws.1 and 4 had chosen to take samples from the 200 ml. of Indian made foreign liquor contained in one broken or opened bottle, but no sample was taken from the remaining 7 bottles. So, there is no ## **Crl.R.P.No.570 of 2000** ## **:-9-:** evidence as to the nature and contents of all the 7 bottles. In the absence of evidence in this regard, it cannot be said that the 7 bottles are containing Indian made foreign liquor. Therefore, it cannot be said that the petitioner has committed the offences under Sections 55(i) and 58 of the Kerala Abkari Act. 8. In the result, the Crl.Revision Petition is allowed. Petitioner is acquitted of all the charges levelled against him and if any bail bond is executed, the same will stand cancelled. Sd/- Mbs/ **(V.K.MOHANAN)** Judge -true copy- P.A.to Judge. ## **Crl.R.P.No.570 of 2000** **:-10-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.R.P.NO. 570 OF 2000 -------------------------------------------- **O R D E R** DATED: 20-2-2008 ## **Crl.R.P.No.570 of 2000** **:-11-:**