Soman v. State of Kerala

CRL.A.No.1049 OF 2013 1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 29TH DAY OF JULY 2020 / 7TH SRAVANA, 1942** ## **CRL.A.No.1049 OF 2013** **AGAINST THE JUDGMENT IN SC 514/2012 DATED 15-06-2013 OF ADDITIONAL DISTRICT COURT (ADHOC-1), THODUPUZHA** ## **APPELLANT/S:** **SOMAN, S/O.MADHAVAN S/O.MADHAVAN, CHOONDAKKATTIL HOUSE, MLAMALA KARA, MANJUMALA VILLAGE, PEERMADE TALUK.** **BY ADV. SRI.LATHEESH SEBASTIAN** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **ADV. SRI. E.C. BINEESH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-072020, THE COURT ON 29-07-2020 DELIVERED THE FOLLOWING:** CRL.A.No.1049 OF 2013 2- ## **J U D G M E N T** Appellant is the convict in Sessions Case No. 514 of 2012 of the Additional Sessions Court (Adhoc - I), Thodupuzha. By the impugned judgment dated 15.06.2013 he stands convicted for offence punishable under Sections 55(i) and 63 read with 13 of the Abkari Act. Thus he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/-, in default, to undergo simple imprisonment for three months for the offence punishable under Section 55(i) and to undergo simple imprisonment for six months for the offence punishable under Section 63 read with 13 of the Abkari Act. The said sentences were directed to run concurrently. That finding of conviction and sentence is called in question in this appeal filed under Section 374(2) of the Code of Criminal Procedure. 2. The allegation in brief against the appellant is that on 18.08.2011 at 09:00 p.m., the Preventive Officer attached to the Excise Circle Inspector's office, Peerumedu and party found the appellant near the building of Vyapari Vyavasayi Ekopana Samithi CRL.A.No.1049 OF 2013 3- property at Naalukandom junction in Manjumala village in Peermade taluk on the Vandiperiyar – Thengakal road, possessing 4.075 litres of Indian Made Foreign Liquor and selling the same. The party seized the contraband and arrested the accused and on 19.08.2011 Excise Crime 35 of 2011 of Vandiperiyar Excise Range was registered; the appellant and the contraband were promptly produced before court and he was remanded to judicial custody. After completing investigation and obtaining the chemical examination report, the charge sheet was laid before the court of the Judicial First Class Magistrate, Peermade, where C.P. 47 of 2012 was registered. After completing the formalities the case was committed to the Sessions Court, Thodupuzha from where the matter was made over to the trial court. 3. After hearing counsel on both sides when the charge was framed, read over and explained, the appellant pleaded not guilty. He was on bail. He was defended by a counsel of his choice. 4. Five witnesses were examined on the side of the prosecution. They are the Preventive Officer who led the Excise party and detected CRL.A.No.1049 OF 2013 4- the crime and arrested the accused, two independent occurrence witnesses, the Excise Inspector who completed the investigation and laid the charge sheet and the Village Officer who prepared the site plan. After completing prosecution evidence when examined under Section 313(1)(b) Cr.P.C., the appellant reiterated his innocence and denied all the incriminating materials. According to him, that day he was returning from hospital with his child; as there was drizzling, he was standing in front of the provision store and then the Abkari officials came there, removed him from the place and slapped a false case against him. After taking him to the Excise office his friends were called through mobile phone and the case was registered on their arrival. As there was no ground for acquitting the appellant under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. However no evidence was adduced. After hearing counsel on both sides, by the impugned judgment, he was convicted and sentenced, as mentioned above. 5. I heard the learned counsel for the appellant and the learned Public Prosecutor. According to the learned counsel, the Sessions Judge was finding the appellant guilty basing on the solitary evidence CRL.A.No.1049 OF 2013 5- of PW1 the Preventive Officer which was bad. PWs 2 and 3 independent occurrence witnesses did not support the prosecution case. Therefore the trial court should not have proceeded against him basing on the uncorroborated evidence of an official. He also pointed out that though the alleged incident was detected on 18.08.2011, the crime was registered only on 19.08.2011, which also is sufficient to doubt the credibility of the prosecution. There is absolutely no evidence of sale of the items by the appellant. The learned counsel also pointed out that the appellant has already undergone detention for 26 days from 18.08.2011 to 14.09.2011. 6. On the other hand the learned Public Prosecutor pointed out that the convincing oral testimony of PW1 proves the seizure of 4.075 litres of Indian Made Foreign Liquor from the appellant. PW1 has also spoken that he had seen the appellant engaged in the act of sale of the liquor. In this connection he invited my attention to the seizure of MO13 glass tumbler from the possession of the appellant and cash worth Rs. 80, both are indicating sale of the items, which attracts offence under Section 55(i) of the Abkari Act. Similarly the appellant had carried liquor in small bottles, 14 bottles were seized from him, 8 CRL.A.No.1049 OF 2013 6- bottles containing 375 ml each, 5 bottles containing 180 ml and another bottle containing 175 ml. According to the learned Public Prosecutor there is absolutely nothing to disbelieve the PW1. 7. Defence has no dispute on the Ext. P10 chemical analysis report issued in Crime 35 of 2011 of Vandiperiyar Excise Range; It is specifically noticed that the seals on the packets and bottles were intact. Ext. P8 forwarding note also contains the sample seal affixed by PW1, the detecting officer. Going by Ext. P10 it is quite obvious that the contraband was Indian Made Foreign Liquor. 8. PW1 is the Preventive Officer who detected the crime, seized 4.075 litres of Indian Made foreign Liquor from the appellant, arrested him from the spot and produced before the Range office. He has supported the prosecution case. According to him, that day when they were engaged in patrol duty, the appellant was found engaged in sale of liquor at Naalukandom junction; seeing the excise party, two other persons, both supposedly the customers of the appellant, took to their heels; when the party reached there the appellant was carrying one bottle containing 175 ml of liquor and a glass tumbler and the CRL.A.No.1049 OF 2013 7- remaining bottles having capacities of 375 ml and 180 ml were found from the MO14 bigshopper which was found from the proximity of the appellant. After smelling and tasting the content of the bottles it was found to be foreign liquor and on that basis the appellant was arrested and the items were seized from his possession. It is true that the testimony of PW1 stands unshaken in cross examination. 9. PWs 2 and 3 are independent witnesses who had attested the Ext. P1 seizure mahazar. They also proved the arrest of the appellant but both of them turned hostile to the prosecution and were cross examined by the Public Prosecutor. PW4 the Investigating Officer and PW5 Village Officer do not have positive roles in the proof of the charge. Thus the prosecution evidence hinges on the credibility of PW1 Preventive Officer. 10. Even though PWs 2 and 3 independent witnesses have turned hostile to the prosecution, both have testified that Ext. P1 mahazar bear their signature. But PW2 added that he had signed the document at the Range office whereas PW3 said that he was signing on blank papers. These versions cannot be believed on its face value. CRL.A.No.1049 OF 2013 8- There is nothing in evidence to show that they had any previous acquaintance with the appellant or to say that they were summoned to the Excise office in connection with a false case foisted by the officials. In fact there is no motive for the same. There is no allegation or suggestion that, PW1 detecting officer had any previous acquaintance with the appellant, for that reason nothing can be attributed to say that he was framing a false case against the appellant. Such a cock and bull story has been raised without good faith. That means it is quite certain that the appellant was taken into custody as alleged by the prosecution from a public place while he was found at Nalukandom junction while carrying 4.075 litres of Indian Made Foreign Liquor. 11. The next question to be considered is whether he was found engaged in illegal sale of liquor. In my considered opinion, there is no fool proof evidence for the same. Of course a glass tumbler was shown seized from the possession of the appellant from the place but this part of the evidence sounds artificial. In my view, unless that part of the testimony of PW1 is corroborated through independent evidence, it would not be on the safer side to proceed against the CRL.A.No.1049 OF 2013 9- appellant for punishing for the offence under Section 55(i) of the Abkari Act. It seems that the prosecution has put up a stereotype version with the supporting testimony given by PW1. Merely for the reason that the prosecution has shown that the appellant had carried a glass tumbler along with the contraband, or he had cash worth Rs.80/-, it cannot be presumed that he was engaged in the sale of liquor. There is also no allegation that he had such criminal antecedents to his credit. Prosecution has no doubt that the contraband is genuine foreign liquor purchased from a Beverages Corporation outlet at Pambanar. Though it was vaguely stated that two persons were found standing near him who were his customers, no attempt was made either to intercept them or to enquire their identity. In this setting, in my opinion, basing on the solitary evidence of PW1, this part of the prosecution version cannot be believed and the offence alleged under Section 55(i) of the Abkari Act cannot be found against him. 12. On the other hand, as mentioned earlier, even though PWs 2 and 3 have turned hostile to the prosecution, it is only a matter of inference that they were witnesses to the Ext.P1 seizure mahazar. So much part of evidence of PW1 when considered along with that of CRL.A.No.1049 OF 2013 10- PWs 2 and 3 and connected materials, it can safely be concluded that the appellant was found carrying 4.075 litres of Indian Made Foreign Liquor notwithstanding the fact that the latter part of the allegation, that he was found engaged in sale is not proved beyond doubt. 13. Now the question is whether possessing 4.075 litres of Indian Made Foreign Liquor attracts any penal provision. The incident had happened on 18.08.2011, at 09:00 p.m. and the crime was registered on 19.08.2011. According to Section 13 of the Abkari Act, no person not being a licensed manufacturer or vendor of liquor or intoxicating drugs shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as the Government may from time to time, prescribe by notification, in respect of any specified description or kind of liquor or intoxicating drug, unless under a license granted by the Commissioner in that behalf. The quantity of Indian Made Foreign Liquor that could be possessed by an individual without license varied from time to time, in accordance with the notifications issued by the Government. Going by G.O. (P) No. 127/03/2003/TD dated 2[nd] August 2003 a person could carry only three litres of Indian Made Foreign Liquor that day. That means, on CRL.A.No.1049 OF 2013 11- the date of occurrence, the appellant was in his possession excess quantity of IMFL which is against Section 13 of the Act. 14. This Court had occasion to consider such a situation in _**v**_ decisions reported in **Nobbey . State of Kerala [2011 (1) KLT SN 51 Case No. 68], Sobichan @ Joseph** _**v**_ **. State of Kerala [2013 (3) KLT SN 89 Case No. 93]** etc. where it has been held that though the liquor was purchased from the Beverages Corporation for own consumption, still offence under Section 63 of the Abkari Act is attracted. A similar view is possible in the facts of this case also. 15. To sum up, it is not proved beyond reasonable doubt that the appellant was engaged in illegal sale of Indian Made Foreign Liquor. Therefore the finding of the learned Sessions Judge requires intervention to that extent. Thus the appellant is found not guilty under Section 55(i) of the Abkari Act and is acquitted thereunder. At the same time his act falls under Section 13 read with 63 of the Abkari Act and the conviction thereunder is confirmed. The learned counsel submitted that the appellant has already undergone detention for 26 days. In the circumstances and having CRL.A.No.1049 OF 2013 12- regard to the gravity of the offence, I feel that the sentence imposed by the trial court is disproportionate. In my view, the punishment warrants interference. Under Section 13 read with 63 of the Abkari Act, he is sentenced to pay a fine of Rs. 3,000/- (Rupees Three Thousand only), in default, to undergo simple imprisonment for 15 days. The appellant is granted one month time from the date of receipt of a copy of this judgment by the trial court for paying the fine, failing which steps shall be taken to realize the amount. Appeal allowed to the above extent. **Sd/-** **K. HARIPAL JUDGE** Eb/27.07.2020 ///TRUE COPY/// P.A. TO JUDGE