High Court of KeralaSingle Judge2017-03-27The appeal is partly allowed as above.

Suresh and Laxmanan v. State of Kerala

Case / Petition Number:CRL.A.No. 1863 of 2004 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.P. Jyothindranath
Judgment Date: 2017-03-27
Court Decision / Holding: The appeal is partly allowed. The conviction under Section 55(a) of the Abkari Act is upheld, but the sentence is reduced to rigorous imprisonment for 1½ years and a fine of Rs. 1,00,000 per appellant, with default imprisonment for six months. The appellants are entitled to set-off under Section 428 Cr.P.C.
Final Disposition: The appeal is partly allowed as above.

Parties to the Case

Appellants / Petitioners

Suresh, s/o Madhavan
Laxmanan, s/o Kumaran

Respondents

The Sub Inspector of Police, Elathur
State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri.T.G.Rajendran

Counsels for Respondents

• Public Prosecutor SMT.Rekha C.Nair

Case Synopsis & Summary

Suresh and Laxmanan, appellants, were convicted under Section 55(a) of the Abkari Act for transporting 250 cartons of Indian Made Foreign Liquor (IMFL) without a valid licence in a lorry (KL 01/G 6408) on 17 May 2000. The trial court in SC 402/2002 sentenced them to five years of rigorous imprisonment and a fine of Rs 1,00,000 each, with default imprisonment. The prosecution’s case rested on seizure of the contraband and the authenticity of Ext. P1 (the sample) and related documents. The defence challenged several evidentiary aspects: inordinate delay in producing the contraband before court; absence of a forwarding note; lack of guarantee that the article produced was the same analysed; reliance on verification by a court officer (instead of a magistrate) under amendments to Section 53A; and the effect of the timing of amending provisions. The prosecution argued that the large quantity of liquor implicates the offence despite minor delays. The High Court meticulously examined the evidence and held that, although the forwarding note and related procedures were frameworkally scrutinized, the large quantity of contraband and the testimony of witnesses established possession and control. Consequently, the conviction under Section 55(a) of the Abkari Act was upheld, while the sentence was reduced to 1½ years of rigorous imprisonment and a fine of Rs 1,00,000 per appellant, with set-off under Section 428 Cr.P.C.

Provisions of Law Cited

Abkari Act, s.55(a)Cr.P.C., s.102Cr.P.C., s.53Cr.P.C., s.53ACr.P.C., s.428

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that there was inordinate delay in producing the contraband before the court and questioned the absence of a forwarding note, the lack of certainty that the article produced in court was the same analysed, and the reliance on a court-officer verification (before 2002 amendments) rather than magistrate verification under Section 53A. They contended that without a proper forwarding note, sample seal, and contemporaneous logs, the chain of custody and evidentiary value of Ext.P1/Ext.P4/Ext.P5 is seriously undermined. They urged that the prosecution failed to prove production “forthwith” and challenged the applicability of the amended provisions to an incident in 2000. They further argued that the large quantity of liquor, together with procedural gaps, should cast reasonable doubt on conviction under 55(a).

Contentions of Respondents

The respondents contended that 250 cartons of IMFL seized constitute a clear offence under Section 55(a) Abkari Act and that the large quantity supports the inference of possession and intent. They emphasized that the detection, arrest, and seizure were credible, corroborated by PW1, PW2, and others, and that Ext.P1–MO1 to MO6 sufficiently linked the seized contraband to the accused. They argued that delays in forwarding notes or formal proofs do not erase the substantive proof of possession and that mercy should not be extended to permit technical gaps where the core facts are established. They maintained that the evidence, though imperfect in formalities, satisfied the requirements of proof beyond reasonable doubt and justified conviction and sentence after appropriate consideration of mitigating factors.”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sumathy v. State of Kerala	2016 (4) KHC 225	Positive	Cited for the proposition that forwarding notes are mandatory in the forwarding of contraband, a principle relied upon to scrutinize the evidence chain.
Krishnan H. State	2015 (1) KHC 822	Mentioned Only	Cited regarding the requirement that sample seals accompany forwarding notes; used as reference rather than controlling authority in the present decision.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Suresh and Laxmanan v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939** ## **CRL.A.No. 1863 of 2004 (A)** ## **---------------------------** **AGAINST THE JUDGMENT IN SC 402/2002 of ADDL.DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC I), KOZHIKODE** ## **APPELLANTS/ACCUSED::** **---------------------** **1. SURESH, S/O. MADHAVAN,** **VILAKKATHARATH HOUSE, VALLACHIRA P.O.,, KADALASSERY, TRICHUR.** **2. LAXMANAN, S/O. KUMARAN,** **KALLAKKATTIL HOUSE, PADIYAM VILLAGE,, ANTHIKKAD, KANDASSAMKADAVU.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE::** **-----------------------------------** **1. THE SUB INSPECTOR OF POLICE, ELATHUR.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.1863 OF 2004** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of March, 2017 ## **JUDGMENT** This appeal is preferred against the judgment of conviction and sentence passed in S.C.No.402/2002 on the files of the Additional District & Sessions Judge, Fast Track (Adhoc I), Kozhikode. The conviction is under Section 55(a) of the Abkari Act. The appellants are sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.1,00,000/- each, in default to undergo simple imprisonment for a further period of nine months each. 2. When the appeal came up for hearing, the learned counsel for the appellants submitted before me that the prosecution case is that on 17.5.2000, 250 cartons of IMFL was seized from a lorry bearing Reg.No.KL 01/ G 6408 while transporting the same without valid licence or permit. 3. The main argument advanced before me is that there was inordinate delay in producing the contraband before the court. It is 2 Crl.Appeal No.1863/2004 the submission that even though the detection was on 17.5.2000, admittedly it reached the court only on 8.6.2000. The learned counsel also submitted that no forwarding note was produced and marked in this case. Then, there is no guarantee that the article actually taken into possession was the article actually analysed by the analyst, which is alleged to be taken from the contraband seized and marked as Ext.P1. It is also submitted that the trial court without any legal basis relied upon Ext.P4 and P5. Ext.P5 will make evident that even on 8.6.2000, the article was not actually produced before the court. Even therein, the request is to verify the article by a responsible court officer and as such it is the case of the prosecution that one junior superintendent verified and reported. But the submission of the learned counsel is that by an amendment of 2002, such verification can be done only by a Magistrate and not by a clerk of the court. Section 53A was introduced only on 3.9.2002 whereas the incident herein occurred on 17.5.2000 and such a procedure cannot be followed by the excise department and even though Ext.P5 is marked before the court, it will not have any Crl.Appeal No.1863/2004 3 evidenciary value. It is also the submission that by virtue of Section 3 of the Act also, that cannot be pressed into service as the said clerk/junior superintendent was not examined before the curt. Under such circumstances, it cannot be said that the property actually produced before the court. The corollary is that even though the prosecution got a case that huge quantity of contraband was seized on the said day, there is no legal evidence before the court that such a quantity was produced before the court. In support of the above submission, the learned counsel brought to my notice the dictum laid down by this Court in **Sumathy v. State of Kerala ( 2016 (4) KHC 225)** wherein it is stated that it is mandatory that forwarding note has to be prepared. The learned counsel also brought to my attention the decision in **Krishnan H. State ( 2015 (1) KHC 822)** , wherein the dictum laid down is that sample seal also has to be produced along with the forwarding note to give assurance that the very same sealed article reached before the court as well as the analyst. In this case it is the submission that there is no forwarding note itself. In respect of delay Crl.Appeal No.1863/2004 4 also, the learned counsel drew my attention to the decision in **Krishnan H's** case ( supra). 4. The learned Public Prosecutor submitted before me that in this case 250 cartons of Indian Made Foreign Liquor seized. The court has to consider the quantity involved. It is the further submission that sample lifted is from the above quantity of liquor. The submission is that when the quantity is very high and possession of Indian Made Foreign Liquor above the permissible limit itself invite the offence under Section 55(a) of the Abkari Act. Then, the small delay in producing the article before the court will not go to the root of the case. It is the submission that the articles are marked before the court as MO1 to MO 6. Thus, the gist of the submission of the learned Public Prosecutor is that when the lifting of the sample is proved and such a huge quantity is now before the court there need not be any doubt. It is the submission that it is not a case like a small quantity of liquor seized. But when large quantity is before the court and even if the accused got any doubt regarding the contents of the analysis report, the 5 Crl.Appeal No.1863/2004 liquor available before the court can be sent for analysis. 5. After hearing the learned counsel on both sides, I have gone through the evidence in this case. The evidence shows that the detection is on 17.5.2000. The appellants are seen arrested from the spot itself, even though they moved the vehicle forward without obeying the direction to stop the vehicle. It can be further seen that accused tried to run away from the spot, they were chased, caught and arrested. Their behaviour deposed to by PW1 itself will show that they were aware of the fact that the lorry contained the contraband. There is nothing to disbelieve the evidence of PW1 regarding the seizure. PW2 is the Additional S.I.of Police, who was along with PW1. His evidence also corroborates the seizure of the lorry with the contraband. PW3 is an alleged witness to Ext.P1 and P1(a). But he did not support the prosecution. 6. PW4 is the Circle Inspector who conducted the investigation in this case. He prepared the mahazar which is marked as Ext.P9. PW5 is the Sub Inspector who verified the investigation and 6 Crl.Appeal No.1863/2004 filed the charge. 7. Surely, there is no inordinate delay in reporting the seizure before the court. The detection is on 17.5.2000. Arrested accused produced before court. But as rightly pointed out by the learned counsel for the appellants, Ext.P4 is dated 8.6.2000. Ext.P5 is a request to the court stating that card board boxes were damaged due to rain and it cannot be conveniently transported to the court. It is to be remembered that by virtue of Section 102 of Cr.P.C., when there is some practical or actual difficulty to transport the seized articles to the court, the matter can be reported to the court. It can be further seen that since the article is with the police itself, it was requested to verify the same by the court officer and the same is seen allowed by the Magistrate and an endorsement is therein to that effect. Surely, the said court officer was not examined and that lacuna is therein. The amendment to Section 53 came into force only on 3.9.2002. But it is to be remembered that in this case the article was kept in the custody of police usurping the power under Section 102(3) of Cr.P.C. Non- Crl.Appeal No.1863/2004 7 production of contraband “forthwith” before court will not be fatal only when such a very large quantity is seized and not produced. It will depend upon facts of the case and explanation available in each case. It is also brought to my notice that by the amendment to section 53, only the Magistrate got the power to verify and certify. But in this case, contraband actually produced before the court during trial and marked. Huge quantity is therein. The possibility of falsely implicating by getting such a huge quantity can be ruled out. When the original contraband in such a large quantity is before the court there need not be any doubt regarding the truth of the prosecution case. Under such circumstances, the fact that an offence under Section 55(a) is seen proved by the prosecution. But at the same time, it is to be remembered that even though detection was on 17.5.2000, property list reached before the court only on 8.6.2000. There is also force in the submission of the learned counsel that the articles are not physically produced before the court even on that day. When sentence is imposed this fact also can be looked into by this Court. Crl.Appeal No.1863/2004 8 8. Under such circumstances, conviction under Section 55(a) of the Abkari Act is upheld. The sentence is modified and reduced as rigorous imprisonment for 1 ½ years. The appellants shall also pay a fine of Rs.1,00,000/- each in default to undergo simple imprisonment for a further period of six months each. It is also made clear that the appellants are entitled for set off as contemplated under Section 428 of Cr.P.C. The appeal is partly allowed as above. **K.P.JYOTHINDRANATH JUDGE** sv.