Sajeev S/o Palliyali Thambu Janardhanan v. The Excise Inspector, Nilambur Range Office, Nilambur & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **CRL.A.No.603 OF 2005** **AGAINST THE JUDGMENT IN SC 277/2002 DATED 14-03-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK COURT-1 (ADHOC), MANJERI** ## **APPELLANT/ACCUSED:** **SAJEEV S/O. PALLIYALI THAMBU AIAS JANARDHANAN,, PALLIYALI HOUSE, KURUMBALANGODE AMSOM,, CHOORAKKODU DESOM, NILAMBUR TALUK.** **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENTS:** **1 THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NILAMBUR, MALAPPURAM DISTRICT. 2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, HIGH COURT BUILDINGS, HIGH COURT ROAD,, ERNAKULAM, COCHIN-682 031.** ## **OTHER PRESENT:** **SRI. T.R. RANJITH, P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.Appeal No.603 of 2005** ## **:-2-:** **Dated this the 4[th] day of February, 2020** ## **J U D G M E N T** The sole accused in S.C.No.277 of 2002 before the Court of Additional District and Sessions Judge, Fast Track Court-1 (Ad hoc)-Manjeri, has filed this appeal challenging his conviction for offence punishable under Section 55(a) and (g) of the Abkari Act (for short, 'the Act') and also the sentence imposed on him. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1 lakh with default sentence of Simple Imprisonment for six months without mentioning the offences for which he was sentenced. 2. The case before the Committal Court was charge sheeted by PW4-Excise Range Inspector, Nilambur, on the allegation that he possessed ## **Crl.Appeal No.603 of 2005** ## **:-3-:** 2 ltrs of illicit arrack in MO1 2½ ltrs of Can and also 54 ltrs of wash in three tins of 80 ltrs each, at the place of occurrence and committed offences punishable under Sections 55(a) and (g) of the Act. 3. The prosecution case is that on 11.12.2000 at 5 p.m. the patrol party consisting of Excise Inspector, Nilambur, who is PW1, and his subordinate Excise Guards found the appellant in a pathway leading from Konumundakkavu in Kaanukuthu forest in Choorakkatt Desom in Nilambur Taluk carrying MO1 Can. He was intercepted and on inspection of the contents, it was found that the Can contained 2 ltrs of arrack. On his questioning, it was revealed that he had kept 54 ltrs of wash in three tins, 10 mtrs away from where he was searched. MO2 series tins containing wash were also recovered. PW1, the Detecting ## **Crl.Appeal No.603 of 2005** ## **:-4-:** Officer, took 200 ml of sample of arrack from MO1 Can and 700 ml sample of wash from one among the MO2 series tins. The samples were labelled and sealed in accordance with law. The appellant was arrested at 5 p.m itself as could be seen from Ext.P1 arrest memo. The search is stated to have been conducted in the presence of an independent witness. He prepared Ext.P2 seizure mahazar, which PW3, an independent witness admits to have signed. PW2, the accompanying Excise Guard also is a signatory to Ext.P2 seizure mahazar which evidences the arrest of the appellant, seizure of material objects and compliance with all other legal formalities relating to collection of samples and affixture of labels. 4. PW1 himself prepared Ext.P3 occurrence report. The investigation of the case was taken over by PW4 who is also an Excise Inspector and he ## **Crl.Appeal No.603 of 2005** ## **:-5-:** prepared Ext.P4 property list and caused the samples produced before court to be forwarded for chemical analysis. After completing investigation of the case, he submitted final report before the Committal Court from where the case came to be tried before the Court of Sessions-Kasaragod. On the case being made over to Additional Sessions Court-Manjeri, the charge was framed against the appellant for offences punishable under Section 55(a) and (g) of the Act which he denied when it was read over and explained. 5. On the side of the prosecution, PWs.1 to 4 were examined and Exts.P1 to P7 and Mos.1 and 2 were marked. At the end of the prosecution evidence, the appellant was called upon to answer incriminating evidence and circumstances under Section 313 of Cr.P.C. wherein he submitted that he was not arrested from the place of occurrence ## **Crl.Appeal No.603 of 2005** ## **:-6-:** nor was he in possession of contraband liquor. His submission was that while he was returning from a hospital, he was summoned to Excise Office where his arrest was recorded but as a matter of fact, he did not have any involvement in the alleged crime at all. Though he was called upon to enter on defence, he did not adduce any evidence. 6. The court below after considering the testimonies of PWs.1 and 2, who were witnesses to search and seizure, held that the appellant possessed arrack and wash at the place of occurrence and committed offences punishable under Section 55 (a) and (g) of the Act. According to the court below, there was no delay at all in production of the material objects before the court and further, the samples taken from MOs1 and 2 series were found by the chemical laboratory to be the contraband liquor and there was no ## **Crl.Appeal No.603 of 2005** ## **:-7-:** circumstance or evidence on record to suggest that he was falsely implicated. 7. Learned counsel for the appellant submitted that the entire prosecution case is untrustworthy and the involvement of the appellant in the crime has not been satisfactorily proved at all. It was contended that search was not conducted in accordance with Section 36 of the Act, since it was not carried out in the presence of minimum number of two persons as required by Proviso to the said Section. It was also argued that sufficient number of samples as required by law were also not taken. According to the learned counsel for the appellant, the sole testimonies given by the official witnesses are not sufficient to incriminate the appellant and prove the charges levelled against him. It was finally argued that in any view of the matter, Section 55(a) of the ## **Crl.Appeal No.603 of 2005** ## **:-8-:** Act did not apply to the facts of the case inasmuch as the prosecution has no case that the contraband liquor came to the possession of the appellant in the course of any import or export. In support of the above contention, learned counsel placed reliance on a Division Bench decision of this Court in **Mohanan v State of Kerala (2007(1) KLT 845)** . 8. I have heard the learned Public Prosecutor also in this matter. 9. In reappreciating the testimonies of PWs.1 and 2, I am also satisfied that the appellant possessed illicit arrack concealed in MO1 Can. The seizure is sufficiently proved by these official witnesses and in the absence of any allegation that the official witnesses were either enimical to the appellant or had sinister motive to falsely implicate him, their evidence cannot be discarded. ## **Crl.Appeal No.603 of 2005** ## **:-9-:** So far as the search and seizure of liquor from a person is concerned, Section 36 of the Act has no application at all. Therefore, the argument of the learned counsel for the appellant that search of appellant was not in the presence of witnesses referred to in the Proviso to Section 36, is not tenable. PW3, though cited as an independent witness, turned hostile to prosecution, except admitting the signature in Ext.P2 seizure mahazar. On going through the testimonies of PWs.1 and 2, I am fully satisfied that they came to the path way in Kaanukuthu forest and found the appellant transporting MO1 containing illicit arrack. Ext.P2 mahazar was prepared immediately after seizure, at the spot itself. The appellant was arrested at the place itself as is proved by the mahazar and the material objects were produced before the Committal court without any delay as ## **Crl.Appeal No.603 of 2005** ## **:-10-:** could be seen from Ext.P4 property list. The lower court also rightly found that there was no delay in production of the material objects as well as the contemporaneous records. Ext.P5 forwarding note contains the impression of personal seal used by the Detecting Officer for sealing the samples taken at the spot. Ext.P7 chemical examination report also shows that 200 ml of sample of liquor tested by the chemical laboratory has all the characteristic features of illicit arrack. It contained 27.15% by volume of ethyl alcohol. When the testimonies of official witnesses are taken along with the prompt arrival of material objects as well as contemporaneous records in court, it could be held beyond every reasonable doubt that the appellant possessed illicit arrack in MO1 at the place of occurrence. There is no valid and justifiable reason to interfere with the ## **Crl.Appeal No.603 of 2005** ## **:-11-:** conclusion arrived at by the court below that the appellant possessed illicit arrack and was liable to be convicted for the offence punishable under the Act. 10. However as regards the seizure of wash concealed in MO2 series and commission of alleged offence under Section 55(g) is concerned, I have a different view. It cannot be said with certainty that possession of wash was proved by the prosecution because none of the witnesses has a case that they ever found the appellant to be in direct possession of wash. On the other hand, the allegation against him is that on his admission and showing, the official witnesses came nearly 10 mtrs away from the place where he was originally found and the contraband wash kept in MO2 tins were recovered. The confession made before the Excise officials is not admissible in evidence and ## **Crl.Appeal No.603 of 2005** **==> picture [425 x 580] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||||| |---|---|---|---|---|---|---|---| |:-12-:| |it is not a legal evidence also. Except the| |alleged confession of the appellant, there is| |nothing to|connect him with the wash allegedly| |contained in MO2 series tins. The court below did| |not bestow its attention in this respect and was| |carried|away|by|the|testimonies|of|official| |witnesses. In my view, the appellant has not been| |proved to have had possession of wash and since| |there is no satisfactory evidence on record to| |connect him with the alleged possession of wash,| |he is entitled to an order of acquittal for the| |offence punishable under Section 55(g) of the Act| |at least on benefit of reasonable doubt.| |11.|The impugned judgment shows that despite| |the appellant being found guilty of offences under| |Section 55(a) and (g) of the Act, the offences for| |which he was sentenced were not mentoned. This is| |quite|illegal.|But|that|does|not|mean|that| **----- End of picture text -----**<br> ## **Crl.Appeal No.603 of 2005** ## **:-13-:** this Court cannot correct the mistake committed by the court below and fix criminal liability under appropriate penal Section and pass sentence according to law. 12. In this context, the learned counsel for the appellant submits that even if the accused is found guilty of being in possession of illicit arrack, he cannot be convicted and sentenced for the offence under Section 55(a) at all as held by the court below. Citing **Mohanan's case** ( _supra_ ), it was argued that Section 55(a) will get attracted only to such possession of liquor preceded by the knowledge of the accused that it was illegally imported, transported or manufactured. Even assuming that the argument could be accepted as correct also, the appellant cannot escape from lawful punishment under any circumstances, since his penal liability could be roped in either under ## **Crl.Appeal No.603 of 2005** ## **:-14-:** Section 58 or Section 8(2) of the Act. After amendment of Section 8 of the Act, an accused manufacturing, importing, exporting, transporting or possessing arrack is punishable under Section 8(2) of the Act with imprisonment for a term which may extend to 10 years and also fine, which shall not be less than Rs.1 lakh. Having regard to the date of occurrence in this case, the appropriate penal provision under which the appellant could be held guilty and sentenced appears to be Section 8(2) of the Act. Looking at the charge framed by the trial court also, I am satisfied that the appellant will not be prejudiced in any way if he is sentenced for offence punishable under Section 8(2) of the Act. This is because the entire charge framed by the court below contains all necessary ingredients constituting possession of arrack. Therefore, in these circumstances, I find that the ## **Crl.Appeal No.603 of 2005** ## **:-15-:** appellant committed offence under Section 8(2) of the Act. So far as his conviction under Section 55(g) of the Act is concerned, it requires to be reversed and he is liable to be acquitted. Having regard to the facts and circumstances of the case, I am of the opinion that the sentence imposed by the court below is disproportionate, considering the gravity of offence he is alleged to have committed. In any view of the matter, a lenient view requires to be taken in his case. In the result, the appellant succeeds in part only and he is convicted and sentenced for offence punishable under Section 8(2) of the Act to undergo simple imprisonment for 3 months and to pay fine of Rs.1 lakh with default sentence of another simple imprisonment for one month. He is acquitted of offence punishable under Section 55(g) of the Act. The appellant will get regular **Crl.Appeal No.603 of 2005** **:-16-:** set off in accordance with law. The Registry will issue fresh copy of this judgment to the appellant, forthwith. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/