Rajendran s/o Nanu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **CRL.A.No.1793 OF 2005** **AGAINST THE JUDGMENT IN SC 608/2000 DATED 01-10-2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC)COURT-I, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 57/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR** ## **APPELLANT/FIRST ACCUSED:** **RAJENDRAN S/O.NANU, THYPPARAMBIL VEEDU, KOTTARATHIL KADAVU, CHITUR MURI, PANMANA VILLAGE.** **BY ADV. SRI.SAJJU.S** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR. PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1793/2005 2 ## **JUDGMENT** ## **Dated this the 22nd day of June 2020** This appeal is filed by the first accused in Sessions Case No.608 of 2000 on the file of the Additional Sessions Judge (Adhoc) Court-I, Kollam. The Sub Inspector of Police, Chathannoor Police Station charge sheeted the appellant herein and another alleging offences punishable under Sections 55(a) and (i) of the Abkari Act. 2. The prosecution case is that on 14.2.1999, at about 4 P.M., the first accused was found in possession of sale of about 12 litres of arrack, mixed with toddy in Toddy shop No.90 of Pallimon Cheri, of which the second accused was the licensee. 3. To substantiate the case, prosecution examined PW1 to PW4. Exts.P1 to P8 are the exhibits marked on the side of the prosecution. MOI to MOIII are the material objects. 4. On going through the evidence and the documents, the court below found that the first accused committed the Crl.A.No.1793/2005 3 offence under Section 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the first accused was directed to undergo simple imprisonment for a period of six months. The second accused was found guilty under Section 55(i) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.2,00,000/- under Section 55(i) of the Abkari Act. In default of payment of fine, the second accused was directed to undergo simple imprisonment for a period of two years. Aggrieved by the conviction and sentence, the first accused filed the present appeal. The second accused filed Crl.Appeal No.1728 of 2005. 5. Heard the learned counsel for the appellant and the learned public prosecutor. 6. The learned counsel for the appellant submitted that no offence under Section 55(a) of the Abkari Act is committed by the appellant. He also submitted that the second accused was acquitted by this Court and the same principle is applicable to him also. Hence the appellant/first accused submitted that Crl.A.No.1793/2005 4 he is entitled an acquittal. 7. The learned Public Prosecutor submitted that in the light of the judgment in Crl.Appeal No.1728 of 2005 filed by the second accused in this case, this Court may pass appropriate orders. 8. After hearing both sides, the point for consideration is whether the appellant committed the offence under Section 55(a) of the Abkari Act. 9. This Court, as per the judgment dated 24.11.2006 in Crl.Appeal No.1728 of 2005, acquitted the second accused in this case. The relevant portion of the judgment of this Court in the judgment dated 24.11.2006 in Crl.Appeal No.1728 of 2005 is extracted herein : “7. This Court considered the evidence adduced by the prosecution and the contentions raised by either side. It is seen that when PW.3 was examined by the defence counsel with regard to the contractor of the toddy shop, he had stated that the name of the appellant was not seen on the board kept in the toddy shop. Further, the first accused when questioned by the prosecution never stated that the appellant was the licensee of the toddy shop. There is no evidence to show that the appellant was the licensee of the toddy shop except Ext.P8 which was produced before the court below after closing the entire evidence. Further, Crl.A.No.1793/2005 5 learned counsel for the appellant submits that copy of Ext.P8 was not given to the appellant before producing the same before the court below. Even if it is accepted, for argument sake, that as per Ext.P8 the appellant was the licensee of the toddy shop, there is no evidence to show that the first accused was the employee of the appellant and that he was entrusted with the contraband articles for sale. The case put forward by the first accused was that he was engaged in selling curry in the toddy shop during the relevant time. There is no master and employee relationship between the appellant and the first accused. Hence, the prosecution failed to prove that the appellant was the licensee of the toddy shop. Hence, the conviction entered against the appellant cannot be justified under Section 64 of the Abkari Act. 8. Section 64 of the Abkari Act reads as follows: Presumption as to commission of offence in certain cases:-- In prosecutions under section 55, section 55B, section 56A, section 57, section 58, section 58A, and section 58B it shall be presumed until the contrary is proved that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under section 8 or section 55 or section 55 B or section 56 or 56 A or section 57 or section 58 or section 58 A or section 58 B as if he had himself committed Crl.A.No.1793/2005 6 the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence.” A reading of the second part of Section 64 of the Abkari Act would clearly indicate that the holder of a license or permit under the Abkari Act can also be punished as the actual offender for any offence committed by any person in his employment. Hence, it is the duty of the prosecution to prove that the alleged offence was committed by the employee and only then can the employer be roped in under the above provision. Since the prosecution failed to establish that the first accused was an employee of the appellant, the conviction against the appellant will not stand. 9. The next question to be considered is whether PW.3 and the other officials failed to comply with the provisions of Section 36 of the Abkari Act and the Excise Manual. The crime was detected on 14.2.1999. As per Ext.P3 property list, the sample, residue and the other material objects were kept in the police station and were produced before the court below only on 1.3.1999. Hence, there occurred a delay of 14 days in producing the contraband articles and other material objects before the court below. In this context, this Court is of the view that only because of the delay in producing the material objects before the court below, the prosecution case cannot be brushed aside. But, neither PW.3 nor PW.2 had a case that the contraband articles and the other material objects were kept in tact till those items were produced before the court below. It is to be noted that in the decision reported in Narayani v. Excise Inspector, 2002(3)K.L.T. 725, this Court had taken the view that “the prosecution has not Crl.A.No.1793/2005 7 proved that residue and sample were kept in the proper custody till those items were produced in court on 13.9.1995 and chance of tampering cannot be ruled out, benefit of doubt is to be given to the accused.” Further, in Dominic v. State of Kerala, 1989 (1) K.L.T. 601, this Court had taken the view that “when S.36 of the Abkari Act and paragraphs 17, 26, 34, 49 and 77 in the Manual are read together, as they should be, it is clear that seizure should be reported to the Court 'forthwith' , and request made for sending a sample for analysis.” Hence, this Court is of the view that the delay in producing the contraband articles and the other material objects before the court below is prejudicial to the appellant. It is also to be noted that the case put forward by the appellant was that he had no connection with the commission of the offence as alleged by the prosecution. This Court has also taken into account the fact that Ext.P8 relied on by the trial court was produced through the Public Prosecutor after closing the entire evidence and after questioning the appellant under Section 313 Cr.P.C. and that too without giving a copy of Ext.P8 to the appellant as contemplated under Section 207 Cr.P.C. 10. In the above circumstances, this Court is of the view that the appellant is entitled to the benefit of doubt. Hence, the conviction and sentence ordered against the appellant - second accused in S.C.No.608 of 2000 on the file of the Additional District and Sessions (Adhoc) Court No.I, Kollam are set aside and the appellant is acquitted. The appellant shall be released forthwith, if he is not wanted in connection with any other case.” 10. This Court found that the delay in producing the Crl.A.No.1793/2005 8 contraband article before the court is fatal to the prosecution. This Court also observed that the prosecution failed to establish that the second accused was an employee of the appellant and therefore, the second accused was acquitted. The same principle is applicable to the appellant/first accused also. In the light of the judgment dated 24.11.2006 in Crl.Appeal No.1728 of 2005, the appellant/first accused is also entitled the benefit of doubt. Hence this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant/accused as per judgment dated 1.10.2005 in S.C.No.608 of 2000 on the file of the Additional Sessions Court (Adhoc) - I, Kollam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **csl**