Kuttappan v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937** **CRL.A.No. 1020 of 2004 (C) ---------------------------** **AGAINST THE JUDGMENT IN SC NO.101/2004 of 3RD ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-I, THRISSUR DATED 31-05-2004 -------------------------** **APPELLANT(S)/ACCUSED: --------------------** **KUTTAPPAN, S/O KANNUKADAN NANU, KORANODI, VADAKKUMMURI DESOM, VARANDARAPPILLY.** **BY ADV. SRI.P.SREEKUMAR** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE, REPRESENTED BY THE EXCISE INSPECTOR, IRINJALAKUDA RANGE (CR-2).** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1020 of 2004 ---------------------------------Dated this the 2[nd] day of March, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the conviction and sentence in S.C. No.101 of 2004 of the 3[rd] Additional Sessions Judge (Adhoc), Fast Track-I, Thrissur under Sec.58 of the Abkari Act. The charge against the appellant is that on 11.01.2000 at 4.45 p.m., he was found in possession of three bottles of coloured arrack (each containing 750 ml) by the preventive officer, Excise Range Office, Irinjalakuda. He was arrested and the contraband articles were seized. Reaching at the Excise Range Office, the Preventive officer registered a crime. After completing investigation, the Excise Range Inspector, Inrinjalakuda laid charge before the Judicial First Class Magistrate Court, Irinjalakuda. Subsequently, the case was committed to Sessions Court, Thrissur. From there, it was made over to 3[rd] Additional Sessions Judge (Fast Track)-I. 2. During trial, prosecution examined PW1 to Crl. Appeal No.1020 of 2004 2 PW6 and marked Exts.P1 to P9 as documentary evidence. MO1 series and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 as defence witness. The learned 3[rd] Additional Sessions Judge convicted the accused under Sec.58 of the Abkari Act and sentenced him to rigorous imprisonment for one year and fine of Rs.1,00,000/(Rupees one lakh only). In default of payment of fine, rigorous imprisonment for three months. Being aggrieved by that, the accused preferred this appeal. 3. The learned counsel appearing for the appellant contended that no evidence has been adduced by the prosecution to show that the appellant was in possession of coloured arrack knowing that it is unauthorisedly manufactured. The appellant was in possession of three bottles of foreign liquor and the seal was broken and that itself is not sufficient to convict the accused under Sec.58 of the Abkari Act. He also contended that DW1, the excise guard supported the Crl. Appeal No.1020 of 2004 3 above contention. Hence, the accused is entitled to get the benefit of doubt. 4. Learned Public Prosecutor admitted the above contention advanced by the learned counsel. 5. The occurrence was stated by the preventive officer, who was examined in the trial court as PW1. The evidence of PW1 shows that, on 11.01.2000 at about 4.45 p.m, he was conducting patrol duty and when he reached at Vadakkummuri-Karanodi tar road in Varantharappilly village, he found the appellant carrying three bottles of coloured arrack. He was arrested and the contraband articles were seized. He identified the contents in the three bottles as illicit liquor. He prepared sample in 375 m.l. bottle and sealed it at the place of occurrence. For that, he prepared Ext.P1 seizure mahazar. He also affixed label in MO1 series. The accused and PW1 signed in it. During cross examination, he admitted that there was no security label on the bottle. But, he admitted that there was a label of the manufacturing company. PW4, Excise Guard who accompanied PW1 supported the evidence of Crl. Appeal No.1020 of 2004 4 PW1. He also attested Ext.P1 mahazar. He identified MO1 series and MO2. 6. Analyzing the evidence of PW1 and PW4, it is clear that they seized MO1 series bottle and MO2 from the possession of the appellant but, they are not sure whether it is coloured arrack or foreign liquor in a fool proof manner. In this context, I have examined the evidence of PW2 and PW3 who are the independent witnesses present at the time of preparation of Exts.P1 and Ext.P2. The independent witness PW2 admitted his signature in Exts.P1 and Ext.P2. PW3 also admitted his signature in Ext.P1. But, they categorically stated that they never saw the seizure of arrack from the possession of the appellant. 7. PW5, the Excise Inspector, deposed that on the basis of Ext.P1 report, he registered a crime and occurrence report. Subsequently, the accused was produced before the court as per Ext.P5 remand application. The seized articles were also produced before the court. Ext.P6 is the property list. PW6 is the Crl. Appeal No.1020 of 2004 5 Excise Guard, who prepared Ext.P7 scene mahazar. He also obtained Ext.P8 site plan. After completing investigation, he laid charge before the court. 8. The specific contention advanced by the appellant is that the contents in MO1 series are not coloured arrack. For substantiating that contention, he examined DW1, who deposed that MO1 series contained label of the manufacturing company. PW1 also admitted that there was a label but, he was not sure that it was the label of the company. PW4 also admitted that there was a label in MO1 series. This creates a doubt in the credibility of the prosecution story. In Ext.P9 Chemical Examination Report, it was reported that the sealed bottles contained 375 m.l. of coloured and light brownish liquid alleged to be coloured arrack involved in Crime no.2 of 2000 of Irinjalakuda Excise Range. The seal of the bottle was intact and found tallied with the sample seal provided. The sample was examined under the supervision of the Chemical Examiner, Ernakulam. The colour of the arrack was reported as light brownish colour. There was smell of ## Crl. Appeal No.1020 of 2004 6 liquor. The Chemical Examination Report stated about the content of ethyl alcohol by volume of 30.10% in the sample. But, they have not ascertained whether it was foreign liquor or a coloured arrack. ## 9. A Division Bench of this court in **Josekutty** ## **v. State of Kerala [2013 (1) KLT 434]** discussed the impact of the possession of arrack which reads as follows: “ Therefore, fact that an accused has been in possession of the illicit liquor by itself is not sufficient. Possession must be knowing that it has been unlawfully manufactured. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession “ with the knowledge that it has been unlawfully manufactured”, S.58 cannot be attracted. ## 10. Division Bench in **Surendran v. Excise** ## **Inspector [2004 (1) KLT 404]** considered this aspect, in paragraph 12 and held: “Learned counsel appearing for the petitioner has specifically stated before us that there was not even a suggestion that petitioner was aware of the fact that it had been illegally imported or manufactured or that duty etc. has not been paid. Thus it appears that even the ingredients of S.58 are not satisfied.” When S.58 mandates that to attract the offence, the person has to be in his possession of any quantity of liquor or any Crl. Appeal No.1020 of 2004 7 intoxicating drug “knowing the same have been unlawfully imported, transported or manufactured”. In the absence of a specific allegation in the complaint/final report, that petitioner has been in possession of liquor, knowing that, it was unlawfully manufactured, she cannot be convicted for the offence under S.58 of the Abkari Act. 11. The fundamental principle of Criminal Law is that the prosecution has to prove the case beyond reasonable doubt with clear, cogent and convincing evidence. Therefore, mere suspicion, however strong it may be, is not an effective substitute for the legal proof required to prove commission of the crime. The evidence in this case show that three bottles of coloured arrack alone was seized. If the contentions of PW1, PW3 and the defence witness are admitted, their allegations of coloured arrack was not proved in the trial court. Nothing was reported in Ext.P9 to show that which colour was added in arrack. In the absence of such evidence, the appellant is entitled to get the benefit of doubt. 12. The apex court in **Krishnan and another v. State Rep. By Inspector of Police [ AIR 2003 SC 2978]** held as follows: Crl. Appeal No.1020 of 2004 8 **“** to constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability and the degrees of it, cannot obviously be expressed in terms of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. The is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must in the last analysis, rest on a robust common sense and, ultimately, on the trained institutions of the Judge, while the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.” 13. Analysing the evidence in this case, the Crl. Appeal No.1020 of 2004 9 prosecution failed to prove that MO1 series contained coloured arrack. There is no allegation that the petitioner was in possession of illicit liquor with knowledge of mens rea. If that be the position, the appellant is entitled to get the benefit of doubt. 14. In the result, conviction and sentence passed by the 3[rd] additional Sessions Judge (Adhoc), Fast Track-I, Thrissur under Sec.58 of the Abkari Act are set aside. The appellant is acquitted and set at liberty. This appeal is allowed as above. NS/03/03/2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge