Puthenpurayil Raveendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938** **CRL.A.No. 940 of 2009 ( ) -------------------------SC 1427/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY** **------** **APPELLANT(S)/ACCUSED:** **--------------------** **PUTHENPURAYIL RAVEENDRAN, S/O. KUNHAPPA, AGED 60 YEARS,PREJIL NIVAS,PATHIRYAD AMSOM, KAITHERI POYIL, KANNUR DISTRICT.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------** **1. THE SUB INSPECTOR OF POLICE, KOOTHUPARAMBA POLICE STATION.** **2. STATE OF KERALA, REPRESENTED BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 & R2 BY PUBLIC PROSECUTOR SMT. P. MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **B.KEMAL PASHA, J.** ================ Crl.A. No.940 of 2009 ======================= Dated this the 9[th] day of August, 2016 ## **JUDGMENT** Appellant is the accused in S.C.No.1427/2005 of the Additional Sessions Court (Adhoc-II), Thalassery, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1,00,000/-, in default to undergo rigorous imprisonment for one more year. 2. The prosecution case is that on 10.09.2003, PW4 Additional Sub Inspector of Police, Kuthuparamba, conducted a search at the house of the accused and in the said search, 13 bottles each containing 750 ml. of Indian Made Foreign Liquor, which carried the sticker of the Kerala State Beverages Corporation, were seized from the kitchen of the house. The accused, who was present at the veranda of the house, was placed under arrest. Initially, the 2 Crl.A. No.940 of 2009 investigation was conducted by PW5 Additional Sub Inspector of Police, Kannavam Police Station. He prepared Ext.P2 scene mahazar. The investigation was taken over by PW6 Sub Inspector of Police, Kuthuparamba. He completed the investigation and filed the final report on getting Ext.P10 certificate of chemical analysis. 3. On the side of the prosecution, PWs.1 to 6 were examined, Exts.P1 to P11 were marked and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant has argued that the search in this case and the consequent seizure through Ext.P1 search list cannot be believed and Ext.P2 cannot be relied on because of the flagrant violation of the Proviso to Section 36 of the Abkari Act. It has also been Crl.A. No.940 of 2009 3 argued that some part of the investigation was conducted by PW5, who was not empowered to investigate the Abkari cases registered at the Kuthuparamba Police Station. It has also been argued that, at any stretch of imagination, the offence under Section 55(a) of the Abkari Act, cannot be attracted in this case. 6. PW4 has clearly conceded before the court below that he has not recorded the reason for making police personnel alone as witnesses in Ext.P1 search list. Apart from that, his evidence does not show that there were no reasons at all. It is true that the reasons for making the police personnel alone as witnesses in Ext.P1 ought to have been elicited from PW4. Necessarily, the said duty was cast upon the prosecution and not the accused. As per the proviso to Section 36 of the Abkari Act, “the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.” 7. The learned counsel for the appellant has invited Crl.A. No.940 of 2009 4 the attention of this Court to the decision in **Ramachandran Nair v. State** [1990 (1) KLT 44], wherein it was held that “the aforesaid requirement in the proviso to Section 36 is a mandatory one. At the same time, it was held that even if the conditions in a provision are held to be mandatory, no ready inference can be made for the noncompliance that the action is illegal and that the court has to see why the conditions were not complied with.” It is true that there is no explanation from the part of PW4 as to why two such independent witnesses were not invited by him or made as witnesses to see the search. At the same time, the evidence in this case does not show that any prejudice has been caused to the accused on account of the non-compliance of the conditions in the proviso to Section 36 of the Abkari Act. 8. In **Madhavan v. Excise Inspector** [2000 (1) KLT 311], a Division Bench of this Court had held that the aforesaid provision is merely directory and at the same time, it was held that the said provision only renders Crl.A. No.940 of 2009 5 safeguard to the accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. Therefore, the question to be considered is, whether the materials brought on record justify the conviction in this case? 9. The evidence of PW4 stands fully corroborated by the evidence of PW1. The evidence of PW3 Village Officer has proved Ext.P3 certificate of ownership issued by him, and as per the evidence of PW3, the owner of the house concerned was one P.P.Raveendran. It is true that the name of the accused is Puthen purayil Raveendran. Necessarily, the letters 'P.P' can only be the short form of 'Puthen purayil'. Apart from that, PWs.1 and 4 could see the presence of the accused at the veranda of the said building. Even though he attempted to move away, they stopped him and he was placed under arrest. Therefore, there is absolutely nothing to see that the building belongs to some other persons. From the evidence in this case, there is absolutely nothing to doubt the search and seizure. Crl.A. No.940 of 2009 6 10. The next question to be considered is, whether an offence under Section 55(a) of the Abkari Act, can be attracted in this case? The prosecution has no case that the said quantity of Indian Made Foreign Liquor purchased from the Beverages Corporation, which were kept in the house, was seized in the course of any illegal import, illegal export or illegal transport. There is no evidence to show that the same were kept for sales. There is nothing to show that the accused was keeping such excess quantity of IMFL purchased from the Beverages Corporation for his own personal consumption. In such case, an offence under Section 55(a) of the Abkari Act or 55(i) of the Abkari Act cannot be attracted. 11. There is no evidence to show that the contraband involved is illicit liquor within the meaning of Section 58 of the Abkari Act. Matters being so, this is a case, wherein, the offence under Section 63 of the Abkari Act, is attracted. The conviction and sentence passed by the court below under Section 55(a) of the Abkari Act are not legally Crl.A. No.940 of 2009 **==> picture [7 x 9] intentionally omitted <==** sustainable and therefore, the same are liable to be set aside. Instead, the appellant is found guilty of the punishable under Section 63 of the Abkari Act and he is convicted thereunder. In the result, this appeal is allowed in part by setting aside the conviction and sentence passed by the court below for the offence under Section 55(a) of the Abkari Act. Instead, the appellant is found guilty for the offence under Section 63 of the Abkari Act and he is convicted thereunder. The appellant is sentenced to pay a fine of 5,000/-, in₹ default to undergo simple imprisonment for two months. Sd/- ## **B.KEMAL PASHA, JUDGE** stu //TRUE COPY// P.A TO JUDGE. ## Crl.A. No.940 of 2009 8