KUMARAN v. THE EXCISE INSPECTOR, NADAPURAM EXCISE RANGE

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 Crl.Rev.Pet.No. 1430 of 2003(D) {CR.A.84/2000 OF THE ADDL. SESSIONS COURT, VADAKARA C.C.NO.156/1997 OF THE JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM} .................... ## REVN. PETITIONER: APPELLANT/ACCUSED: ---------------------------------------------------------------------- KUMARAN, S/O. CHATHU, AGED 47 YEARS, NEELIYANGATTUMMAL, KAYAKKODI AMSOM, NEDUMANNUR DESOM. BY ADV. SRI.SUNNY MATHEW ## RESPONDENT: RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------- THE EXCISE INSPECTOR, NADAPURAM EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.GIRI, J.** ## **-------------------------** Crl.R.P.No.1430 of 2003 D **------------------------Dated this the 20[th ] day of August, 2008** . ## **O R D E R** The accused in C.C.No.156/97 on the files of the Judicial Magistrate of the First Class, Nadapuram, who was prosecuted, convicted and sentenced for an offence under Section 55(a) of the Kerala Abkari Act, 1997 read with Rule 9 of the Foreign Liquor Rules, is the petitioner in this revision. 2. The case of the prosecution, in brief, is that a patrol party, as directed by the Excise Circle Inspector, Vadakara had intercepted a stage carriage bearing registration No.KL-13-9773 by name “Krishna” at Kuttippuram, in front of the house of one Manoli Moidu, at about 1.15 PM on 7.3.1997. The passengers were searched. The accused was one of the passengers and he was found in possession of 2220 ml of Indian Made Foreign Liquor without licence. Apparently, the liquor was found in 4 bottles of 375 ml. each and 4 bottles of 180 ml. each The bottles did not bear the seal of Kerala State Beverages Corporation. The accused was searched as evidenced by Ext.P1 and P2 mahazar was Crl.R.P.No.1430 of 2003 **:: 2 ::** prepared. The accused was arrested and the articles were seized and removed to the Excise Range Office. The thondi articles and the accused were produced before court on 10.3.1997. 3. The prosecution examined Pws.1 to 5. PW.1 was the Excise Inspector who led the search and PW.2 is the Preventive Officer and PW.3 is another Excise Inspector. Pws.4 and 5 were the driver and conductor of the stage carriage respectively, who were the mahazar witnesses. The contraband articles were sent to the Chemical Examiner. Ext.P4, Chemical Examiner's Report, shows that the articles seized were actually Indian Made Foreign Liquor and they were found without any seal as well. 4. The trial court found that the seizure of the articles was properly proved and that it was also proved that the articles seized were actually Indian Made Foreign Liquor. There was no material to show that the accused was carrying the liquor with the aid of a licence or permit. Therefore, the court found that the articles were contraband and that the accused had contravened the provisions of Section 55(a) of the Kerala Abkari Act, 1997 read with Rule 9 of the Foreign Liquor Rules. In such Crl.R.P.No.1430 of 2003 **:: 3 ::** circumstances, the accused was convicted for the said offence and sentenced to suffer simple imprisonment for a period of 6 months and also to pay a fine of Rs.25,000/- with a default sentence of simple imprisonment for two months. 5. The conviction and sentence were confirmed in appeal viz., Crl.A.No.84/2000 by the Additional District and Sessions Judge, Vadakara and hence this revision. 6. The substantive sentence imposed by the court below was suspended by this court. It is now learnt that the fine amount was not remitted by the accused and it seems that the accused was sent to jail with effect from 5.4.2003, going by the endorsement contained in the proceedings of the Judicial Magistrate of the First Class, Nadapuram evidencing execution of the sentence. 7. I heard learned counsel for the petitioner Sri.Sunny Mathew and the learned Public Prosecutor. 8. Sri.Sunny Mathew submits that there was unexplained delay in the production of the thondi articles before court on 10.3.1997. The search and arrest was on 7.3.1997. The article were actually Crl.R.P.No.1430 of 2003 **:: 4 ::** produced before the Judicial Magistrate of the First Class, Nadapuram. There is no reason why the contraband article should not have been produced on the same day. There is unexplained delay in despatching the sample of the articles seized to the Chemical Examiner as well. He refers to the judgment of this court reported in Narayani v. Excise Inspector {2002(3) KLT 725} to contend for the position that there is no explanation for the delayed production of thondi articles before the court and therefore, there is dearth of materials to show that the articles were kept in proper custody and that chances of tampering with the articles cannot be ruled out. 9. As a proposition of law, obviously the principles laid down in the aforementioned decision would not brook a dissent as such. But a perusal of the said judgment shows that there was a fairly long delay involved in the said case in the production of the thondi articles before the court. The arrest was effected in the said case on 09.8.1995 and the articles were produced on 13.9.1995, after a gap of almost 35 days. The court found that there was no evidence to show that the contraband articles were Crl.R.P.No.1430 of 2003 **:: 5 ::** in the possession of the police till it was produced in court and the testimony of PW.4 examined in the said case, who, according to the prosecution, was the custodian of the contraband, was appreciated by the court, which came to be conclusion that the evidence of PW.4 would show that he was not in custody of the contraband. 10. There is a material difference in the present case. The articles were seized on 7.3.1997 and the same was produced before court on 10.3.1997. The time gap, according to the learned counsel, is crucial enough to warrant a conclusion that the delay as such should cast an onus on the prosecution to prove that the contraband articles were actually kept in proper custody and that they had obviated a chance to tamper with the articles as such. I do not agree. In my view, the court below appreciated this aspect and came to the correct conclusion. The finding does not call for interference by this court as such. 11. Learned counsel for the petitioner further submits that going by the nature of the offence alleged, a sentence of imprisonment of 6 months seems to be on the higher side especially Crl.R.P.No.1430 of 2003 **:: 6 ::** coupled with the payment of fine of Rs.25,000/which was the maximum amount that could be imposed as fine as per the provisions that existed prior to 1997. 12. I heard learned counsel for the petitioner and the Public Prosecutor on this aspect. The Chemical Examiner's report shows that the articles seized were Indian Made Foreign Liquor, i.e., ethyl alcohol. The Chemical Examiner's report does not indicate any other aspect. The quantity seized was 2220 ml. There is no evidence of any prior conviction of the petitioner for a similar offence. 13. For all these reasons, the Crl.R.P. is allowed in part. While confirming the conviction of the petitioner for the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, the sentence imposed on him is modified to the following extent: The period of imprisonment imposed on the accused shall be confined to the period already undergone by him. But the accused shall pay a fine of Rs.25,000/-. It is made clear that if there is any default in payment of the fine, the accused Crl.R.P.No.1430 of 2003 **:: 7 ::** shall undergo simple imprisonment for a period of six months. Since the sentence is being modified, the petitioner shall be given an opportunity to pay the fine of Rs.25,000/-. To enable him to do so, the accused shall appear before the learned magistrate on 6.10.2008. It is made clear that if the accused fails or refuses to pay the fine of Rs.25,000/-, then he shall be liable to undergo simple imprisonment for a period of six months as already directed. But, any period of imprisonment, which he has already suffered hitherto in connection with this case, shall be set off against the period of six months' simple imprisonment imposed herein as the default sentence in the event of non-payment of the fine of Rs.25,000/-. Sd/- **(V.GIRI) JUDGE** sk/ ## **//true copy//** P.S. To Judge