Lakshmanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935 CRL.A.No. 800 of 2005 --------------------[AGAINST THE JUDGMENT DTD.29.4.2005 IN SC 577/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA] APPELLANT(S)/ACCUSED: --------------------- LAKSHMANAN, S/O. SREEDHARAN, ALUMMOOTTIL VEEDU, ATTAPPALLAM BHAGAM KUMILI KARA AND VILLAGE. BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S)/COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------CRL.A.No. 800 of 2005** **----------------------------------------** Dated this the 1[st] day of October, 2013 ## **J U D G M E N T** The above appeal is filed at the instance of the sole accused in S.C.No.577 of 2004 of the court of Additional Sessions Judge (Adhoc-II), Thodupuzha, challenging the judgment dated 29.4.2005 in the above sessions case as he is convicted and sentenced for the offence under Section 55(i) of the Abkari Act. 2. The prosecution allegation is that on 12.2.2002 at about 7 p.m., the accused was found in possession of 5.180 litres of liquor kept by him in different bottles for the purpose of sale while he was in the shop situated in the property of one Biju Paul adjacent to the Popular Automobile Spare Parts situated at Thekkadi Kavala and on seeing the police, the accused who was inside the shop fled from the shop. Thus, according to the prosecution, the accused committed the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. Crl.A..No.800 Of 2005 :-2-: On the basis of the above allegation, crime No.38 of 2002 was registered in the Kumaly Police Station for the said offences and on completing the investigation, the Police has filed a report and eventually, S.C.No.577 of 2004 was instituted in the Sessions Court, Thodupuzha, which is made over to the present trial court for disposal. Thus, on appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed against him for the offences punishable under Sections 55(a) and (i) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty and consequently, the prosecution adduced their evidence by examining Pws.1 to 6 and producing Extgs.P1 to P9, P5(a) and besides the above, Mos.1 and 2 are also identified. The trial court, finally, found that the prosecution has established the guilt of the accused beyond all reasonable doubts and held that the accused is guilty of the offence punishable under Section 55(i) of the Abkari Act and he is accordingly convicted for the offence Crl.A..No.800 Of 2005 :-3-: under Section 55(i) of the Abkari Act. According to the learned Sessions Judge, as the accused is convicted under Section 55(i) and the offence under Section 55(i) takes in the ingredients of offence under Section 55(a), the accused is acquitted under Section 55(a) of the Abkari Act. On such conviction, the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rupees One Lakh and in default, to undergo simple imprisonment for a period of four months. Set off is allowed under Section 428 of the Cr.P.C. Challenging the above finding, conviction and sentence, the accused in the above Sessions case preferred the present appeal. 3. I have heard Sri.C.M.Tomy, learned counsel appearing for the appellant and Sri.T.M.Sheeba, the learned Public Prosecutor. 4. To substantiate the prosecution allegation, the first witness examined, according to the prosecution, is PW1, who is the Village Officer, Kumaly and through his evidence Ext.P1 certificate is proved, ## Crl.A..No.800 Of 2005 :-4-: which shows that 3.150 cents of land comprised in Sy.No.21/1C of Kumaly Village belongs to one Biju Paul (PW3). PW1 has stated the accused was conducting the shop, which is situated in the property covered by Ext.P1 certificate. 5. Pws.2 and 6 are the attestors to Ext.P2 search list examined by the prosecution to prove the seizure. But when Pws.2 and 6 were examined, they turned hostile towards the prosecution, though they admitted their signature in Ext.P2 search list. The contradictory portion of 161 statement of PW2 is marked as Ext.P3 and similarly Ext.P9 with respect to PW6. PW3 is the owner of the property where the shop room is situated from which the contraband article is seized. When PW3 was examined, he deposed that he leased out the temporary shed owned by him on a daily rent of `50/- in favour of the accused and Ext.P4 is the rent deed executed by the accused connected with the rent transaction. 6. As Pws.2 and 6 turned hostile, to prove the occurrence and Crl.A..No.800 Of 2005 :-5-: seizure of the contraband article, the prosecution heavily depends upon the evidence of Pws.4 and 5, who are respectively Police Constable and Additional Sub Inspector of Police attached to Kumali Police Station, who involved in the detection of crime. When PW5 was examined, he deposed that on 12.02.2002, he came to the Thekkadi Kavala near the shop of the accused, on getting prior information about the sale of liquor in his shop and after preparing Ext.P8 search memo, he proceeded to the shop and entered into the same for conducting the search in the presence of independent witnesses. According to PW5, on seeing the Police party, the accused, who is inside the shop, ran away from the shop through the back door of the shop and the incident took place at about 7 p.m. PW5 has categorically deposed that he could identify the accused, who ran away from the shop on seeing them. According to PW5, on search of the kitchen, there were numerous bottles of Indian Made Foregin Liquor in the shop covered by a tin sheet adjacent to the wall of the Crl.A..No.800 Of 2005 :-6-: kitchen. During his examination, PW5 deposed about the bottles in it and according to him, all the bottles were having KSBC sticker and label statement and all the details were stated in Ext.P2 search list. According to PW5, as per Ext.P5 suo motu report, he registered Ext.P5(a) FIR and he produced the seized articles before the court along with Ext.P6 property list and till the production of the material objects before the court, the same were in his safe custody. The samples collected were sent for chemical analysis and accordingly, obtained Ext.P7 report, which shows the samples contained ethyl alcohol. When PW4, the Police Constable attached to the Kumily Police Station is examined, he had also deposed in tune with the deposition to PW5 and both Pws.4 and 5 have identified the bottles which are produced before the court as MO1 series and MO2 which is an empty bottle found in the shop. The further investigation was undertaken by PW6. These are the evidence referred to by the learned Sessions Judge in the impugned judgment, which formed the basis for Crl.A..No.800 Of 2005 :-7-: the finding and conviction recorded against the accused. 7. The learned counsel for the appellant strenuously submitted that even as per the discussion and finding of the learned Sessions Judge, there is no evidence to show that the appellant/accused had engaged in the sales of liquor and therefore, even if the prosecution case is admitted, the only offence disclosed is that the accused was found in possession of excess quantity of IMFL and therefore, none of the offences charged against them would be attracted. Per contra, the learned Public Prosecutor submitted that Ext.P4 rent deed and the evidence of PW3 would show that the accused was in possession of the shop in question from where the contraband articles were seized as per Ext.P2 search list. So, the possession is proved for which the accused has no satisfactory explanation. It is also the contention of the learned Public Prosecutor that the evidence of Pws.4 and 5 show that they could identify the accused, who ran away from the spot and therefore, the prosecution has succeeded in proving that the accused Crl.A..No.800 Of 2005 :-8-: was found in possession of the contraband article. 8. I have carefully considered the arguments advanced by the counsel for the appellant as well as the learned Public Prosecutor. I have perused the deposition of witnesses and perused the other materials on record. 9. In the light of the arguments advanced and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant/accused for the offence under Section 55(i) of the Abkari Act and whether the trial court is justified in acquitting the accused for the offence under Section 55(a) of the Abkari Act. Going by the evidence on record particularly in the light of the evidence given by Pws.4 and 5, the officials who involved in the crime, it can be seen that the IMFL described in Ext.P2 search list was seized from the shop situated in the property covered by Ext.P1 certificate, which belongs to PW3. The evidence of PW3, the owner of the land and shop supported by Ext.P4 Crl.A..No.800 Of 2005 :-9-: rent deed would show that the shop in question was rented out to the accused, who was in possession of the same. The further evidence of Pws.4 and 5 shows that on getting information that the accused is in possession and engaged in the sale of IMFL, they proceeded to the shop in question after preparing Ext.P8 search memo. With respect to the above aspect and that part of evidence of Pws.4 and 5, there is no serious challenge and the same stands proved. According to Pws.4 and 5, on their entering into the shop, which is in possession of the accused, he ran away through the back door and they had seen the accused with whom, as per the evidence of PW5, he has got prior acquaintance. Thereafter, PW5 seized the material objects as per Ext.P2 search list and thereafter, he proceeded to the Station where he registered Ext.P5(a) FIR and on the next day, he produced the entire materials seized as per Ext.P2 search list before the court. Though there was serious cross-examination on the above point, nothing brought on record to discredit the version of Pws.4 and 5 about the Crl.A..No.800 Of 2005 **==> picture [27 x 9] intentionally omitted <==** seizure of the contraband article as per Ext.P2 search list and the identity of the accused. 10. In this juncture, it is relevant to note that even according to PW5, when himself and party entered into the shop in possession of the accused, he noticed the presence of two persons, who came there only to eat tapioca and curry. PW5 has no case that they came there for consumption of liquor or purchasing the same. No material or evidence is collected by PW5 to show that the accused is engaged in the sale of liquor and no sale proceeds is recovered. 11. In paragraph 11 of the impugned judgment, the learned Judge has also found that Pws.4 and 5 have not directly seen the act of sale of liquor in favour of another. 12. From the above discussion, it can be seen that absolutely there is no evidence or material to substantiate the case of the prosecution that the accused has committed the offence punishable under Section 55(i) of the Abkari Act. But, the learned Sessions Crl.A..No.800 Of 2005 **==> picture [27 x 9] intentionally omitted <==** Judge, after acquitting the accused for the offence under Section 55(a), convicted him under Section 55(i), for which there is no evidence at all. According to me, the available evidence shows that the accused was found in the possession of 5.180 litres of Indian Made Foreign Liquor, which are approved for sale in Kerala and marketed by the Kerala State Beverages Corporation. If so, according to me, no offence under Section 55(i) of the Abkari Act is attracted and proved against the appellant. So, the finding and conviction recorded by the trial court to the effect that the accused is guilty under Section 55(i) is set aside and he is acquitted for the said offence. 13. As the appellant/accused is acquitted for the offence under Section 55(i) and as indicated earlier and as he is found in possession of 5.180 litres of Indian Made Foreign Liquor, the further question to be considered is whether he is liable to be convicted for the offence under section 55(a). The prosecution has no case that the appellant/accused has imported or exported or transported IMFL in Crl.A..No.800 Of 2005 :-12-: contravention of the provisions of the Kerala Abkari Act or any of the rules or order made under the Kerala Abkari Act. In order to attract the offence under Section 55(a), the prosecution is bound to establish and prove that the accused either imports or exports (transports, transits or possesses) liquor or any intoxicating drug in contravention of the Act or rule made thereunder. In the absence of any such allegation, I am of the firm view that Section 55(a) is also not attracted, but the fact stands proved in the present case is that he is found in possession of 5.180 litres of IMFL. If that be so, according to me, the only offence attracted is under Section 63, especially when the consumption, possession etc. of IMFL is not prohibitted in the State of Kerala. Thus, what proved is that the appellant/accused is found in possession of foreign liquor in excess of prescribed quantity which amount of the total violation of the provisions of Foreign Liquor Rules and the offence attracted is only under Section 63. The above position is clarified by the decision reported in **Raman** v. **State** Crl.A..No.800 Of 2005 :-13-: **of Kerala** (2007(4) KLT 223). From the above discussion, evidence and materials on record and in view of the decision cited supra, the only penal provision attracted against the appellant is only under Section 63 of the Kerala Abkari Act. In the result, this appeal is disposed of setting aside the judgment dated 29.4.2005 in S.C.No.577 of 2004 on the file of the court of Additional Sessions Judge (ADHOC)-II, Thodupuzha and the conviction and sentence recorded as per the above impugned judgment against the appellant is set aside and in view of my finding, the appellant is convicted for the offence under Section 63 of the Abkari Act and he is sentenced to pay fine of `5000/- (Rupees Five Thousand only) and in default, he is directed to undergo simple imprisonment for six months. The appellant is directed to appear before the trial court on **1.11.2013** to receive the sentence imposed under Section 63 of the Kerala Abkari Act and to pay the fine amount and if there is any failure on the part of the appellant in appearing Crl.A..No.800 Of 2005 :-14-: before that court as directed above, the trial court is free to take coercive steps to secure the presence of the appellant and to execute the sentence now imposed. MBS/ **V.K.MOHANAN, Judge** Crl.A..No.800 Of 2005 :-15-: