Kunhikkanna v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 30TH DAY OF MARCH 2012/10TH CHAITHRA 1934 CRL.A.No. 2007 of 2011 ----------------------SC.709/2010 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-1), KOZHIKODE APPELLANT/APPELLANT: ---------------------- KUNHIKKANNA, S/O.KADUNGON,C.NO.9549 C.NO.9549, CENTRAL PRISON, KANNUR. BY ADV. SRI.SAKIR K.H. (S.B) RESPONDENT: -------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LALIZA T.Y THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3003-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.2007of 2011** **------------------------------Dated this the 30[th] day of March, 2012.** ## **J U D G M E N T** The sole accused in S.C.No.709 of 2010 of the court of Additional District and Sessions Judge, Fast Track (Adhoc-1), Kozhikode is the accused in this appeal in which the challenge is against the conviction and sentence imposed against him under section 55(a) of the Kerala Abkari Act read with Rule 9 of the Foreign Liquor Rules. 2. The prosecution case is that on 5.8.2009 at about 5p.m., the accused was found at Nadapuram bus stand in front of Himalaya Pharmaceuticals in possession of 15 bottles of Indian made foreign liquor without any licence or permit and thus the accused has committed the offence punishable under section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. To prove the above allegation, the prosecution CRL.A.No.2007 of 2011 ## **-:2:-** has produced evidence consists of the deposition of PWs 1 to 6 and documents Exts.P1 to P8. No evidence either oral or documentary produced from the side of the defence. The trial court has finally found that the prosecution has conclusively established and proved the charge levelled against the accused punishable under section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and accordingly, he is found guilty and convicted thereunder. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-(Rs.one lakh only), in default, to undergo simple imprisonment for another 3 months. Set off is allowed. It is the above findings and order of conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment, in pursuance of the impugned judgment, he preferred the appeal from the jail, and on receipt of the same as ordered by this court, the registry has appointed Sri K.M.Sakir, a ## CRL.A.No.2007 of 2011 ## **-:3:-** counsel from the panel of State Brief to prosecute the appeal on behalf of the appellant. Thus, I have heard Sri K.M.Sakir, the counsel for the appellant and Smt. Laliza T.Y., the learned Public Prosecutor appearing for the State. 4. The learned counsel for the appellant contended that section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules is not attracted against the appellant in the light of the facts and circumstances involved in the case, especially in view of the following decisions of this court in **Mohanan v. State of Kerala** (2007 (1) KLT 845); **Sabu v. State of Kerala** (2007 (4) KLT 169); **Raman v. State of Kerala** (2007(4) KLT 223) and **Narayanan Nair v. State of Kerala** (2011 (3) KLT 722). It is the further submission of the learned counsel that, at the most, even if the entire case of the prosecution is admitted as true, the only offence revealed is under section 63 of the Abkari Act 1997. The learned Public ## CRL.A.No.2007 of 2011 ## **-:4:-** Prosecutor fairly conceded that, in the present case, the prosecution has no specific case that the appellant has imported or transported Indian made foreign liquor into the State of Kerala from other State. In the light of the above submission of the counsel for the appellant, and the learned Public Prosecutor, the only question to be considered is, whether the trial court is correct and justified in its finding that the appellant has committed the offence punishable under section 55(a) of the Kerala Abkari Act 1997 read with Rule 9 of the Foreign Liquor Rules and what the offence revealed against the appellant in the light of the facts and circumstances involved in the present case. 5. In the light of the submissions made by the learned counsel for the appellant and the learned Public Prosecutor, I am of the view that I need not go into the evidence and other details and materials to reappreciate the same. PW1 is the then S.I of Police, Nadapuram CRL.A.No.2007 of 2011 ## **-:5:-** Police Station, the officer who detected the crime. As per his evidence, in pursuance of information received by him, the Sub Inspector and party rushed to Nadapuram Police Station and had seen a person with identical dress description given in the information who was standing near to the Himalaya Pharmaceuticals. According to PW1, that person was restrained and on search of his body, 13 bottles of Indian made foreign liquor was seen tied around his waist and wrapped in paper. According to PW1, those articles were seized and the accused was arrested in accordance with the procedure and law and thereafter the accused was brought to the police station and crime No.259/09 was registered and Ext.P3 is the FIR. The arrest memo is Ext.P1. Ext.P2 is the mahazar under which the contraband articles were seized. Ext.P4 is the property list. Ex.P5 report was filed before the court for getting an inventory certificate. Ext.P6 is the forwarding note on the basis of which Chemical Analysis report was CRL.A.No.2007 of 2011 ## **-:6:-** obtained which is marked as Ext.P8. Though the independent witnesses turned hostile, the evidence of PW1 is fully supported by PW2. The evidence of the official witnesses are in tact. Thus, the prosecution has succeeded in proving and establishing the allegation that 13 bottles of Indian made foreign liquor were seized from the possession of the appellant/accused. Absolutely there is no materials or evidence to show that the appellant has brought those contraband articles to the State of Kerala. Though in Ext.P2 mahazar, it is stated that the contraband article was brought from Karnataka, the prosecution did not stick on that allegation when the case was tried and no such plea was raised and no evidence is adduced in this regard. Thus it can be safely concluded that the only allegation of the prosecution is that the accused was found in possession of 13 bottles of Indian made foreign liquor, total quantity of the same is 2.5. litres. It is now settled legal position that in order to attract Section 55(a) of the CRL.A.No.2007 of 2011 ## **-:7:-** Abkari Act, the prosecution has to plea and prove that the accused had involved in the act of transporting, importing, or exporting Indian made foreign liquor and it has to be specifically proved that the accused involved in any of such overt act. But in the present case, there is no allegation and no evidence to prove that the accused was found in possession of 2.5 litres of Indian made foreign liquor when he was either transporting the same or importing or exporting. Therefore, the decision cited by the learned counsel for the appellant squarely applies in the light of the facts and circumstances involved in the case on hand. The consequent result is that the findings of the court below cannot be approved. Resultantly, the conviction recorded by the trial court against the appellant under section 55(a) of the Kerala Abkari Act and Rule 9 of the Foreign Liquor Rules is liable to be set aside and I do so. 6. As this court has found that the offence under section 55(a) of the Abkari Act read with Rule 9 of the CRL.A.No.2007 of 2011 ## **-:8:-** Foreign liquor Rules is not lie against the appellant, the next question to be considered is , what are the offences attracted against the appellant in the light of the evidence and materials on record. 7. From the evidence and circumstances involved, it can be seen that the accused was found in possession of 13 bottles of Indian made foreign liquor and the quantity involved is only 2.5. litres. As per G.O No.127 of 2003 dated 2.8.2003, an individual is permitted to have in possession of maximum of 3 litres of Indian made foreign liquor. But in the present case, the quantity involved is below that permitted limit and therefore, no other offence is attracted against the appellant. Therefore, the appellant is entitled to get a free acquittal. In the result, this appeal is allowed, setting aside the judgment dated 27.7.2011 in S.C.No.709/2010 of the court of the Additional District and Sessions Judge, Fast Track (Ad hoc-I), Kozhikode, and he is acquitted of all the CRL.A.No.2007 of 2011 ## **-:9:-** charges levelled against him and he is set at liberty. As the appellant is acquitted , he is entitled to get released from the jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Kannur, forthwith for appropriate action. **V.K.MOHANAN, Judge** kvm/-