Shaji s/o Chummar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935 CRL.A.No. 969 of 2005 ( ) -------------------------SC 41/2005 of ADDITIONAL SESSIONS COURT (ADHOC)-I, KOTTAYAM APPELLANT(S)/ACCUSED:: ------------------------------------------ SHAJI, S/O. CHUMMAR, VELLAKKADA VEEDU, LAKKATTOOR KARA, KOOROPPADA VILLAGE. BY ADVS.SRI.R.REJI SMT.SHIVA RAJA RESHMI RESPONDENT(S)/STATE/COMPLAINANT:: ---------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, REPRESENTING S I OF POLICE, PALLICKATHODE. R1 BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.969 of 2005 -------------------------------------Dated this the 20[th] day of February, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Appellant challenges the conviction and sentence awarded by the learned Additional Sessions Judge (Adhoc) - I, Kottayam under Sections 55(a) and (i) of the Abkari Act (for short, “the Act”). Prosecution case, shortly stated, is that on 21.06.2004 at about 12.30 p.m., the appellant was found keeping 13 bottles of Planters XXX Rum, each having 375 ml. capacity (Indian Made Foreign Liquor - IMFL) in his shoproom. Appellant was conducting a business called 'Matha Help Line' in door No.XI/300 of Akalakkunnam Panchayat. At the time of the trial, five witnesses were examined and Exts.P1 to P5 were exhibited by the prosecution. There was no defence evidence. Mos 1 to 4 are the material objects marked. After considering the evidence, learned Additional Sessions Judge convicted the appellant under Sections 55(a) and (i) of the Act. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 2 Crl.Appeal No.969/2005 4. Learned counsel for the appellant submitted, the prosecution case, that the appellant stored IMFL for sale in his shoproom, has not been established by oral as well as documentary evidence adduced in this case. According to him, the prosecution failed to show that the appellant was conducting a business in the shoproom from where allegedly the recovery of IMFL was effected. Learned counsel for the appellant argued that there is no evidence to show that the appellant was conducting business in the shoproom on the date of recovery of the contraband article. Yet another argument advanced by the learned counsel for the appellant is that the prosecution though alleged that the appellant was engaged in sale of IMFL, failed to establish by satisfactory evidence that he committed any offence of sale of liquor. It is further contended by the learned counsel for the appellant that the alleged search and seizure was in violation of Section 31 of the Act. 5. Per contra, learned Public Prosecutor submitted that from the unimpeached testimony of PWs 4 and 5, it can be seen that the documents, viz., Exts.P1 and P3 were contemporaneously prepared at the time of search and seizure. Learned Public Prosecutor would rely on the testimony of PWs 1 and 2, the neighbouring shop owners to contend that the appellant was possessing the shop at the material time. It is submitted that in spite of hostility of the said witnesses, it has come out in evidence 3 Crl.Appeal No.969/2005 that the appellant was conducting business in the shoproom from where the catch was made. 6. We shall examine the oral evidence in this case. PW1 was conducting a bakery in the same building. He stated that he did not see any recovery of contraband from the shop of the appellant. However, he admits that the appellant was conducting business in the shop in the same building. PW2 also runs a business in the same building. According to him, 'Matha Help Line', the business run by the appellant, was two rooms away from his shoproom. It is true that this witness also failed to support the prosecution case that he witnessed recovery of contraband from the shop of the appellant/accused. 7. PW3 is the owner of the building in which the appellant conducted business. He stated in chief-examination that the appellant was conducting 'Matha Help Line' in a room in the building. According to his evidence, he did not witness the recovery of IMFL from the shop of the appellant. However, he had knowledge about the incident and immediately after the incident, he evicted the appellant from the shoproom. In crossexamination also, he repeated the same version. 8. PW4 is the Secretary of Akalakkunnam Grama Panchayat. He issued Ext.P2 certificate. Ext.P2 would show that the building belonged to PW3. PW5 is the detecting officer. He himself conducted the 4 Crl.Appeal No.969/2005 investigation. His evidence would show the following facts: On 21.06.2004, he along with his police party was conducting law and order patrol duty. Then he got information that the accused, who was running 'Matha Help Line', was engaged in vending illicit liquor from his shop. He prepared Ext.P5 search memo and despatched it to the concerned Magistrate and thereafter he went to the shop and found out a box with a description 'Planters XXX Rum'. When he opened the box, he found 13 bottles of IMFL, apiece containing 375 ml. After ensuring that the bottle contained IMFL, he questioned the accused and found that it was purchased from the retail outlet of the Kerala State Beverages Corporation. Thereafter he arrested the accused for the alleged offence that it was kept for sale in the shoproom. PW5 deposed that valet possessed by the accused contained currency notes of denominations of 10, 20, 50 and 100. According to PW5, this is the proceeds of sale of the liquor. He prepared Ext.P1 search list. According to him, he along with other witnesses signed on Ext.P1 from the place of occurrence itself. Accused was arrested and he, along with the contraband, was taken to the court. From the court, the contraband article was sent for chemical analysis. 9. PW1 was subjected to strict cross-examination. Questions were put to this witness regarding the identity of the shoproom. PW5 would depose that the number of the shoproom was XI/300. However, this Crl.Appeal No.969/2005 5 is not fully corroborated by Ext.P2. A question was asked to PW5 as to what was the basis of his statement that the shoproom from where recovery was effected was possessed by the accused? To this question, he answered that he reliably understood the fact from neighbouring shop owners and also from the owner of the building. During cross-examination of PW5, it was suggested that search memorandum (Ext.P5) was not forwarded to court which he stoutly denied. Testimony of PW5 lends support to Exts.P1 and P3. Chemical Examiner's reports (Exts.P4 and P4 (a)) would show that the contraband sent to the laboratory for analysis was IMFL. 10. Learned counsel for the appellant contended that Section 31 of the Act was not followed at the time of seizure. Section 31 of the Act reads as follows: _“_ _**Power to certain Abkari and Police Officers to search houses, etc., without warrant** :-Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will_ 6 Crl.Appeal No.969/2005 _prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act”._ 11. It is the contention of the learned counsel for the appellant that if Section 31 of the Act has not been properly complied with, the whole search and seizure will fall to the ground. To support that contention, learned counsel for the appellant relied on a decision in **K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711)** . Facts of the decision would show that it was a case decided by the Supreme Court in respect of Mysore Excise Act. The relevant provision of the said Act is extracted in paragraph 2 of the decision which is almost pari materiato Section 31 of the Act. Considering the facts and circumstances established in that case the Supreme Court held that the provisions of Section 54 of the Mysore Excise Act were not complied with in that case and, therefore, it rendered the entire search without jurisdiction, thereby vitiating the conviction under Section 34 of the Mysore Excise Act. But, the facts and circumstances in this case would show that Ext.P5 was sent upto the court. Fact of 7 Crl.Appeal No.969/2005 preparing of Ext.P5 is reiterated in Exts.P1 and P3. Further, PW5 has testified in support of the preparation of search memo and sending it to the court concerned. Therefore, I am of the view that there is no irregularity or illegality in the matter of search. 12. Learned counsel for the appellant further contended that the prosecution has no case that the detecting officer found any signs of sale of liquor from the shoproom. It is also argued that the testimony of PW5 does not show that he was satisfied that the appellant was engaged in sale at the time of search in the shoproom. The basic case of the prosecution is that while on patrol duty PW5 and party got reliable information that the appellant was engaged in illicit sale of liquor from his shoproom. On the basis of that premises they conducted search and seizure. Versions allegedly spoken to by the appellant in the nature of confession to a police officer cannot be relied on by virtue of Section 25 of the Evidence Act. Even if we discount those statements, it is evident that he stored 13 bottles of Planters XXX Rum (IMFL) in a carton which had the capacity of 24 bottles as per the inscriptions on it. It is the case of PW5 that the cash recovered from the valet of the accused was the sale proceeds. However, the appellant had no satisfactory explanation as to the storing of liquor in the shoproom and the cash possessed by him. 13. Learned Public Prosecutor heavily relied on Section 64 of the 8 Crl.Appeal No.969/2005 Act to contend that in a prosecution under Section 55 of the Act, the presumption mentioned in Section 64 of the Act would attract against the accused and it becomes his responsibility to explain the facts exclusively known to him. Here, the defence taken by the accused is one of total denial. 14. I shall examine the legality of convicting the accused for offences under Sections 55(a) and (i) of the Act in this case. Section 55(a) deals with import and export of liquor or any intoxicating drug. It is settled that transporting, transiting or possessing should be either in connection with import or export. There is no allegation by the prosecution that 13 bottles were kept by the appellant or possessed by the appellant which were imported or kept ready for export. In the absence of such an allegation, I find that the conviction of the appellant under Section 55(a) of the Act is unsustainable. Learned Public Prosecutor placed reliance on a decision rendered by the learned Single Judge of this Court in **Jose v. State of Kerala (2007 (2) KLT 202)** . Facts of the case would show that the learned Single Judge was dealing with a case of unauthorisedly imported Karnataka made arrack. In that case case, prosecution charged the accused under Section 55(a). In the context of that case, it was held that the conviction of the appellant in that case could have been recorded either under Section 8(2) or Section 55(a) or Section 58 of the Act. The 9 Crl.Appeal No.969/2005 effect of provisions in Sections 221 and 464 Cr.P.C. were also considered. I am unable to accept the contention of the Public Prosecutor because the decision is clearly distinguishable on facts. Further the conviction imposed in this case by the court below under Section 55(a) cannot be altered to one under Section 58 of the Act for the reason that the basic ingredients to attract an offence under Section 55(a) are different from that of Section 58 of the Act. On a reading of Section 58 of the Act, it can be seen that the appellant should have possessed the liquor knowingly that it had been unlawfully imported, transported or manufactured or knowing that duty, tax, etc under the Act had not been paid. Going by the prosecution allegations in this case, it is seen that the liquor was purchased from a retail outlet of Kerala Beverages Corporation. Therefore, basic ingredients of Section 58 of the Act have not been attracted in this case. Further Section 58 of the Act cannot be said to be a cognate offence of Section 55(a) of the Act. Hence, I find that the materials in this case do not show that the conviction of appellant under Section 55(a) of the Act was legal or proper. Hence, I vacate the same. 15. However, the materials on record would clearly show that the appellant stored IMFL in his shoproom with a view to conduct sale. Search and seizure has been properly explained. Therefore, the court below rightly convicted the appellant under Section 55(i) of the Act. Therefore, 10 Crl.Appeal No.969/2005 the judgment of the court below will have to be modified as under. In the result, the appeal is partly allowed. Conviction of the appellant under Section 55(a) of the Abkari Act is hereby set aside. Conviction of the appellant under Section 55(i) of the Act is hereby confirmed. Substantive sentence under Section 55(i) of the Act on the appellant is reduced to six months rigorous imprisonment. He shall pay a fine of `1,00,000/- (Rupees one lakh only) and in default, undergo rigorous imprisonment for three months. Appellant is entitled to get set off under Section 428 Cr.P.C. for the period of custody he has undergone in this case All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**