IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938
CRL.A.No. 1314 of 2007 ( ) ---------------------------
AGAINST THE JUDGMENT IN SC 596/2005 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 21-06-2007
APPELLANT(S)/ACCUSED:
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KUMARAN, S/O. CHATHU, AGED 58, EDAVALENTAVIDA, NADAPURAM VILLAGE, VADAKARA TALUK, KOZHIKODE DT.
BY ADV. SRI.MOHANAN V.T.K.
RESPONDENT/COMPLAINANT:
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STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA.
BY PUIBLIC PROECUTOR SMT. LISHA M.G.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-042016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **BABU MATHEW P. JOSEPH, J.**
= = = == = = = = = = = = = = = = = = Crl.A. No. 1314 of 2007 = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of April, 2016
## **JUDGMENT**
The appellant was convicted by the Additional Sessions Court, Vadakara, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal.
2. Heard the learned counsel appearing for the
appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows:
PW1, the Preventive Officer, Excise Range Office,
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Nadapuram, and his party were on patrol at Kummankode in Nadapuram at about 1 p.m. on 7.5.2003. While so, the appellant was seen going in front of them carrying a black plastic cover. Entertaining a doubt, the excise party stopped him there. On examining the cover carried by the appellant, six 375 ml. bottles of Radico Contessa Delux Brandy were found in it. Security sticker of the Kerala State Beverages Corporation was not seen affixed on any of these bottles. On questioning, the appellant informed that these bottles of liquor were imported from Mahe. Since the appellant committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P4 Arrest Memo. The six bottles of Indian made foreign liquor measuring 2.250 litres were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. All the six bottles containing liquor were found alike. One of those bottles was taken by PW1 as sample for the purpose of
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subjecting it to chemical analysis. That bottle was sealed. Thereafter, PW1 and his party reached the Excise Range Office, Nadapuram, with the appellant, contraband and the records. PW1 registered Crime No.11 of 2003 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW1. He had produced the appellant, properties and the records before the Judicial First Class Magistrate's Court, Nadapuram. Ext.P5 is a copy of the Forwarding Note. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Nadapuram. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court.
4. The learned Magistrate, after complying with the
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required legal formalities, committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Vadakara. The Assistant Sessions Court, Vadakara, framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. Subsequently, the case was withdrawn and made over to the Additional Sessions Court, Vadakara. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P6 and MO.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. and recorded his statements. He denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.
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5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the appellant had imported six 375 ml. bottles of Indian made foreign liquor for the purpose of sale. In order to attract the offence under Section 55(a) of the Abkari Act in this case, it was incumbent on the part of the prosecution to prove the fact that the appellant imported Indian made foreign liquor from a place outside the State of Kerala. The prosecution must prove that the accused brought Indian made foreign liquor into the State. The absence of stickers of the Kerala State Beverages Corporation on the bottles will not, by itself, prove that those bottles were imported by the accused. The evidence available in this case does not show that the investigating agency had investigated the fact that the appellant had imported Indian made foreign liquor from a place outside the State of Kerala. Unless such fact is
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specifically proved by adducing cogent evidence, a mere possession of Indian made foreign liquor without affixed with the stickers of the Kerala State Beverages Corporation _ipso facto_ will not attract the offence under Section 55(a) of the Abkari Act. Such an attempt for proving the offence was not made by the investigating agency in this case. Therefore, the offence alleged under Section 55(a) of the Abkari Act is not attracted against the appellant. The ruling of this Court in **Narayanan Nair v. State of Kerala (2011 (3)KLT 722)** is applicable to the facts of the case on hand. Going by this ruling, in the facts and circumstances of the case, it has to be found that no offence under Section 55(a) of the Abkari Act has been proved against the appellant.
6. The alleged offence in this case had occurred on 7.5.2003. But, as admitted by PW4, the Investigating Officer, the questioning of witnesses was commenced only after one year and nine months of the occurrence. The
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prosecution has not explained the reason why such inordinate delay had occurred in conducting the investigation of the case.
7. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows:
“ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay.
(2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).”
This Section mandates that every investigation into the
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offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. As already found, no explanation was also offered for happening so. Ext.P6 Certificate of Chemical Analysis had been received by the court on 9.8.2004. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P6 by the court. But, the Final Report had been filed before the court by PW4 only on 5.3.2005. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances of the case, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).**
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8. PW2 was cited and examined by the prosecution as an independent occurrence witness for proving their case. But, he had not supported the prosecution version of occurrence. He was declared hostile to the prosecution. His evidence is of no use for the prosecution. The other independent occurrence witness cited was not examined by the prosecution. An Arrest Notice informing the factum of arrest was not marked in this case. Such an Arrest Notice is not available among the records as well. Of course, the prosecution claims that the factum of arrest was intimated to the son-in-law of the appellant. But that claim remains not proved. The offence alleged against the appellant is a grave one. When all the foregoing facts are considered, it is unsafe to convict the appellant for such a serious offence purely based on the evidence tendered by two official witnesses. The appellant, at least, is entitled to the benefit of doubt.
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9. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him.
10. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled.
This appeal is allowed.
Sd/-
**BABU MATHEW P. JOSEPH JUDGE**
ks.
True copy
P.S. (Hr.Gr.)To Judge
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