Ravindran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935** ## **CRL.A.No. 1532 of 2004 (A)** ## **--------------------------SC.NO. 81/2003 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC-II) KOZHIKODE DATED 15-09-2004** **------------------------------** ## **APPELLANT/ACCUSED:** **----------------------------------------** **RAVINDRAN, S/O. VASU, DRIVER, PANDIYADATH HOUSE, KINALUR.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/RESPONDENT:** **------------------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. JASMINE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **A.HARIPRASAD, J. - - - - - - - - - - - - - - - - - Crl. A. No.1532 of 2004** **- - - - - - - - - - - - - - - -** Dated this the 07[th] day of March, 2014. ## **J U D G M E N T** The appellant was tried and convicted by Additional District & Sessions Judge (Adhoc-II) Kozhikode in SC No. 81/2003 for an offence under Section 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules. 2. The prosecution case in nutshell is as follows: On 06.05.2001, PW1 and party was engaged in inspecting vehicles plying on the road in front of Payyoli Police Station. At about 8.40 a.m., the Detecting Officer stopped the bus bearing No.KL-13/E 9639, which came from Vadakara to Kozhikode side. The appellant was found seated on the right side of the back seat of the bus. He was found to be in possession of 94 bottles of Indian Made Foreign Liquor (IMFL) of different varieties on his lap and beneath his seat. It is the case of the prosecution that the liquor was intended to be sold in the State of Pondicherry only. Therefore, the prosecution would contend that the appellant imported **Crl. A. No.1532 of 2004** **2** liquor to the State of Kerala and hence, liable to be proceeded under Section 55(a) of the Abkari Act. 3. To establish the prosecution case, PWs 1 to 4 were examined and Exts.P1 to P9 were marked. The materials produced are MOs 1 to 10. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. PW1 testified that on 06.05.2001, he inspected the bus mentioned above, which came from Vadakara to Kozhikode side, at 8.45 a.m. He found the appellant seated in the back seat with a packet on his lap. On examination, it was found that the cardboard box kept by the appellant in his possession and beneath the seat contained IMFL. After apprehending the appellant, Ext.P1, seizure mahazar was prepared. The descriptions of liquor seized from the possession of the appellant were clearly mentioned in Ext.P1. 10 bottles of various brands were taken for the purpose of sampling. Ext.P2 is the arrest memo and Ext.P3 is the body search memo. A crime was registered. Ext.P5 is **Crl. A. No.1532 of 2004** **3** the remand report submitted at the time of production of the accused before the court. Ext.P6 is the property list. It reached court on 09.05.2001. According to PW1, he prepared Ext.P6 property list on 08.05.2001 and the delay of two days was due to the fact that he was engaged in law and order duty. It is also deposed by him that the properties produced before the court were in the safe custody during the interregnum. 6. PW2 was a Police Constable who accompanied PW1 at the time of search and seizure. He also testified in tune with the testimony of PW1. PW3 was the Additional Sub Inspector of Police, who conducted the investigation and prepared Ext.P7, scene mahazar. He submitted Ext.P8 forwarding note. Ext.P9 is the chemical examination report. 7. The learned counsel for the appellant contended that the principle in **Narayanan Nair v. State of Kerala, 2011 (3) KLT 722** is applicable in this case. In that decision, the legal distinction between “bringing” and “possessing” was considered **Crl. A. No.1532 of 2004** **4** by the learned Single Judge. The relevant portion reads as follows: “The act of “bringing” is different from being in “possession”. A person who is found to be in “possession” of a contraband article within the State may not be the one who has brought it into the State. So, only because a person is found to be in “possession” of a contraband article, it cannot be concluded that he himself brought the article into the State. A person shall not be convicted for offence under S.55(a) read with R.9 of the Rules, solely for the reason that he was found in “possession” of IMFL. Prosecution must prove that accused brought IMFL into the State. It can be proved either by direct evidence or by circumstantial evidence.” In paragraph 13, the following observations are made: “The mere presence of an accused in a bus plying between two places situated within the State of Kerala en-route Mahe(a place which lies outside the territorial limits of the State) with some bottles of IMFL will not prove that he “imported” IMFL. The absence of stickers of KSBC on such bottles will also not by itself prove that those are “imported” by the accused who is found to be in possession of the same. Neither of the above facts are sufficient to hold a person guilty of offence under S.55(a) of the Act read with Rules 9 of the Rules, even though those may be two circumstances, coupled with proof of some other circumstances which may prove “import” depending upon facts and circumstances of each case.” **Crl. A. No.1532 of 2004** **5** 8. The learned counsel for the appellant therefore would contend that mere presence of the accused in the bus cannot be a reason of find that he imported IMFL into the State in violation of the provisions of the Abkari Act. Here in this case, the evidence adduced by the prosecution through PWs 1 and 2 will clearly show that the appellant was found sitting in the last row of seats with a carton on his lap and another carton beneath his seat. Recovery of the contraband has been clearly proved. The testimony of witnesses coupled with the chemical analysis report will go to show that the contraband recovered from the possession of the accused are various brands of IMFL in various quantities. 9. The learned counsel for the appellant placed reliance on Ext.P9 chemical analysis report to content that the prosecution has no case that the samples allegedly taken at the time of detection and recovery were sealed in two packets at the time of sending them for analysis. In this context, a glance at Ext.P8 **Crl. A. No.1532 of 2004** **6** forwarding note is also relevant. In the covering letter to Ext.P8, learned Magistrate has stated that he forward the samples produced before the court by Sub Inspector of Police, Payyoli in the said crime for analysis. But it is also mentioned by the learned Magistrate in Ext.P8 that, those items were again packed and sealed by affixing the metal seal of the court. It is to be noticed that under the chemico-legal examination rules, there is no prohibition in sending material objects for chemical analysis in separate packets. The learned Prosecutor would contend that going by Rule 30 of aforesaid Rules, it is evident that the bottles sent up for analysis to be kept in boxes and it shall be encased in some rough cloth or wrapping material, which shall be securely closed and sealed. Going by the provisions of the Rules, I do not find any infirmity or irregularity in sending the samples for analysis from the court as mentioned in Ext.P8. 10. For the aforesaid reasons, I do not find any infirmity in the procedure adopted by the Investigating **Crl. A. No.1532 of 2004** **7** officer. The contention of the Prosecutor that the appellant imported liquor to the State of Kerala has not been fortified in view of the proposition in **Narayanan's case** (supra). The fact that he was found in possession of excess quantity of liquor than permitted at the given point of time will not ipso facto attract the offence under Section 55 (a) of the Abkari Act. In the absence of any evidence that the appellant himself was responsible for the import of the liquor, I find that the conviction of the appellant under Section 55(a) of the Abakri Act cannot be sustained. However, the appellant is guilty of violating the provision of Section 13 of the Act for which he has to be punished under Section 63 of the Act. Therefore, the appeal is to be allowed to that extent. In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act r/w Rule 9 of Kerala Foreign Liquor Rule is hereby set aside. Appellant is found guilty of violation of Section 13 of the Abkari Act and liable to be **Crl. A. No.1532 of 2004** **8** punished under Section 63 of the Abkari Act. He shall pay a fine of Rs.5,000/- (Rupees Five thousand only) and in default of payment of fine, he shall undergo simple imprisonment for a period of three months. It is submitted that the appellant had deposited Rs. 25,000/(Rupees Twenty five thousand only) as a condition for suspending the sentence. The amount if any deposited by the appellant as a condition of suspension of sentence shall be refunded to him. With this direction the appeal is allowed. ## Sd/ **-A.HARIPRASAD, JUDGE** lsn