Mathai Antony @ Mathachan S/O Antony v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **CRL.A.No. 901 of 2013 (A) --------------------------** **AGAINST THE JUDGMENT IN SC 547/2012 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **AGAINST THE JUDGMENT IN CP 33/2012 of J.M.F.C.,PEERUMEDU CRIME NO. 196/2011 OF UPPUTHARA POLICE STATION , IDUKKI** **APPELLANT(S)/1ST ACCUSED: -------------------------** **MATHAI ANTONY @ MATHACHAN S/O.ANTONY, MULLUVENGAPURATHU HOUSE, KIZHUKANAM BHAGAM, KANNAMPADY KARA, UPPUTHARA VILLAGE, PEERMADE TALUK.** **BY ADVS.SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SRI.THOMAS J.ANAKKALLUNKAL** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY THE S.H.O, UPPUTHARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,682 031.** **BY PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 901 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of January, 2017 ## **J U D G M E N T** The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act in S.C.No. 547 of 2012 of the Court of Session, Thodupuzha. He is he first accused in the said case. Two others were also prosecuted along with the first accused, but they were acquitted by the trial court, on the finding that they are not guilty. 2. The prosecution case is that at about 8.30 p.m. on 15.8.2011, the appellant was found transporting a huge quantity of 45 litres of Indian Made Foreign Liquor in his jeep No. KL-3C 2574. Seeing the jeep coming in high speed, the Sub Inspector of Police Upputhara gave signal to stop the vehicle. In spite of signal, the driver sped away with the passengers, and immediately, the Sub Inspector chased the vehicle and blocked it. Just when the vehicle was **Crl.A.No. 901 of 2013** **-2-** stopped, the two passengers seen on the rear seat ran off and escaped, but the driver was caught by the Sub Inspector. He is the appellant herein. When the Sub Inspector inspected the vehicle, it was found containing 5 cartons of Indian Made Foreign Liquor being transported therein. Each carton contained six bottles of Indian Made Foreign Liquor. Finding that it was being illicitly transported for sale, the sub Inspector arrested the driver of the jeep and seized the liquor bottles as per mahazar. The accused and the properties were brought to the Police Station, where the Sub Inspector registered a crime. Investigation was taken over by another Sub Inspector, and he submitted final report also in court. The persons who ran off and escaped were later arrested by the Police as accused Nos. 2 and 3. After investigation, the Police submitted final report against three accused, including the driver of the vehicle arrested on the spot, under Sections 55 (a) & 55 (i) of the Kerala Abkari Act. ## **Crl.A.No. 901 of 2013** **-3-** 3. After complying with the procedure, the learned Judicial First Class Magistrate-I, Peermade, committed the case to the Court of Session from where it was made over to the learned Additional Sessions Judge, (Adhoc-II), Thodupuzha, for trial and disposal. 4. The three accused, including the appellant herein, appeared before the learned Trial Judge, and pleaded not guilty to the charge framed against them under Sections 55(a) and 55(i) of the Kerala Abkari Act. The prosecution examined 5 witnesses, and proved Exts. P1 to P16 documents. MO 1 to MO 3 properties were also identified during trial. 5. When examined under Section 313 of Cr.P.C., the appeellant projected a defence of total denial, and contended that he was only a passenger in the jeep, that he had not transported any quantity of liquor, and that he happened to be arrested by the Police just because he was found inside the jeep as a passenger. The accused **Crl.A.No. 901 of 2013** **-4-** examined one witness as DW1 in defence, and also proved Ext. D1 document. 6. On an appreciation of the evidence, the trial court found the first accused guilty under Section 55(a) of the Kerala Abkari Act. On the finding that the accused had not sold any quantity of liquor to anybody, he was found not guilty under Section 55(i) of the Kerala Abkari Act. On conviction under Section 55(a) of the Kerala Abkari Act, the first accused was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1 lakh by₹ judgment dated 1.6.2013. The accused Nos. 2 and 3 were acquitted under 235(1) of Cr.P.C.. Aggrieved by the judgment of conviction, the first accused has come up in appeal. 7. When this appeal came up for hearing, the learned counsel for the appellant submitted that if at all the case stands proved on facts, a conviction in this case is possible only under Section 63 of the Kerala Abkari Act. **Crl.A.No. 901 of 2013** **-5-** Much was not argued by the learned counsel about the detection process, or arrest of the accused, or the seizure of contraband article. The prosecution records would not reveal that the liquor bottles seized by the Sub Inspector from the possession of the accused contained liquor illicitly imported or transported from any other State. The case of the accused is that it was Kerala liquor purchased from the Kerala State Beverages Corporation outlet. Of course, the accused does not have any bill or voucher to prove the same. When the prosecution does not have a case that it was liquor imported from any other State, the court will have to accept the version of the accused that it was purchased from the Kerala State Beverages Corporation. Arrest of the accused and also seizure of 45 litres of Indian Made Foreign Liquor is well proved by the evidence of PW4, who detected the offence. He is the Sub Inspector or Police. PW5 is the Sub Inspector, who investigated the case, and submitted final report. PW4 has given clear evidence regarding the **Crl.A.No. 901 of 2013** **-6-** arrest of the accused, seizure of 45 litres of liquor from the possession of the accused, and he has also given evidence regarding the sampling process. I find on facts that the prosecution case stands well proved. 8. Now, the question is whether a conviction in this case is possible under Section 55(a) of the Kerala Abkari Act. The learned counsel relies on a Division Bench ruling of this Court in **Mohammed** v. **State of Kerala** (2007 (1) KLT 845) followed by other Single Bench decisions also. One of the decisions is in **Gopi & Another** v. **State of Kerala & others** (2010 KHC 1068) = (2011 1 KLT SN 68). In all these cases, this Court held that mere possession of excess quantity of Kerala liquor can be punished only under Section 63 of the Kerala Abkari Act, and not under Section 55(a) of the Act. This Court held that what is punishable under Section 55(a) of the Act is possession as part of illicit import or export or transport of liquor. Here, there is nothing to show that the quantity of 45 litres of liquor was imported by **Crl.A.No. 901 of 2013** **-7-** the accused from any other State. When the prosecution does not have such an allegation or case, the version of the accused will have to be accepted by the court that he purchased it from the Kerala State Beverages Corporation. If so, it is only a case of possession of excess quantity of Kerala Liquor punishable under Section 63 of the Kerala Abkari Act, in view of the position settled by this Court in the decisions cited supra. Accordingly, I find that the conviction in this case is liable to be converted into one under Section 63 of the Kerala Abkari Act. The punishment prescribed is only a fine of 5,000/-. No jail sentence can be imposed₹ under Section 63 of the Kerala Abkari Act. To this extent, the appeal can be allowed, and the conviction can be altered to one under Section 63 of the Kerala Abkari Act. In the result, this appeal is allowed in part. The finding of guilty made by the court below against the accused is upheld in appeal. However, the conviction made against him by the trial court under Section 55(a) of the ## **Crl.A.No. 901 of 2013** **-8-** Kerala Abkari Act is altered to one under Section 63 of the Kerala Abkari Act. Accordingly, the sentence imposed by the court below under Section 55(a) of the Kerala Abkari Act in S.C.No. 547 of 2012 of the Court of Session, Thodupuzha will stand set aside, and instead, a fine sentence of 5,000/-₹ (Rupees Five Thousand only) is imposed under Section 63 of the Kerala Abkari Act in appeal. In default of payment of fine, he will have to undergo simple imprisonment for three months. The appellant will surrender before the trial court within two weeks from this date to remit the fine amount, or to undergo default sentence. Sd/- **P.UBAID** //True copy// P.A. to Judge **JUDGE** ds