T. Antony v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934** ## **Crl.Rev.Pet.No. 3542 of 2010 ( )** **-------------------------------CRA.266/2002 OF II ADDL. SESSIONS COURT, KOLLAM DISTRICT CC.974/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KOLLAM ------------------** ## **REVISION PETITIONER/APPELLANT/2ND ACCUSED :** **----------------------------------------------------------------------------** **T.ANTONY, S/O.ABRAHAM, VILAYIL VEEDU, NEERAVIL, KUREEPUZHA CHERRY THRIKKADAVOOR VILLAGE, KOLLAM.** **BY ADVS.SRI.B.MOHANLAL SMT.P.S.PREETHA** ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE :** **---------------------------------------------------------------------------------** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No. 3542 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of September, 2012** ## **O R D E R** The 2[nd] accused in C.C. No.974/1998 before the Judicial Magistrate of the First Class-I, Kollam, is the revision petitioner in this criminal revision petition. He was the licensee of a toddy shop. From his toddy shop, 225 plastic covers containing 100 ml. each of illicit arrack and empty polythene covers used for filling illicit arrack were seized. The salesman of the toddy shop and the revision petitioner were arrested and tried for the offence under Section 55 (a) and (i) of the Abkari Act and were found guilty of the offence under Section 55 (a) of the Abkari Act sentencing them to undergo simple imprisonment for one year each and to pay a fine of Rs.25,000/- each. In default of payment of fine, there was a further direction to undergo simple imprisonment for one more month each, acquitting the accused of the offence under Section 55 (i). The Crl. Rev. Petition No. 3542 of 2010 **-2-** revision petitioner filed an appeal before the Additional Sessions Judge-II, Kollam, who confirmed the conviction and sentence. The revision petitioner challenges the orders of the lower courts in this criminal revision petition. 2. The revision petitioner raises three grounds. First is that, in view of the decision of the Division Bench of this Court in **Mohanan v. State of Kerala [2007 (1) KLT 845],** Section 55 (a) is attracted only in cases of possession in the course of import, export, transport or transit. For possession simpliciter the provision applicable is Section 58 of the Abkari Act under which there was no charge laid is the contention. The prosecution has not proved any import, export, transport or transit by the revision petitioner and therefore the revision petitioner could not have been convicted under Section 55 (a), submits the counsel for the petitioner. The 2[nd] contention is that there was a delay of two days in producing the contraband before the Magistrate insofar as the seizure was at 6 pm on 26.09.1996 and the contraband article, samples and records were produced Crl. Rev. Petition No. 3542 of 2010 **-3-** before the court only on 28.9.1996. The revision petitioner submits that for a successful prosecution, the prosecution was bound to explain the delay of two days in producing the contraband articles and samples before the Magistrate, which has not even attempted to. Thirdly, it is contended that the prosecution has not sufficiently proved that the samples which were subjected to chemical analysis were the samples drawn from the seized contraband article, insofar as the forwarding note of the court forwarding the samples for chemical analysis has not been proved in evidence, without which the petitioner could not have been found guilty. In support of the said contention, the revision petitioner relies on the decision of this Court in **Anandan v. State of Kerala [2007 (3) KHC 599]** , wherein it has been held that even assuming that the bottle which was forwarded to the Chemical Examiner as per the covering letter of the court was the same bottle which was received under the property list produced before the Magistrate, the prosecution will have to further prove that the said sample Crl. Rev. Petition No. 3542 of 2010 **-4-** was drawn from the contraband liquor possessed by the appellant. According to the revision petitioner, the prosecution has not discharged that burden in this case, insofar as the witnesses have not spoken anything about the same. 3. I have heard the learned Public Prosecutor also. 4. The learned Public Prosecutor would argue that insofar as the arrack seized from the petitioner's toddy shop is a baned article in the State, the possession would presuppose import as well and therefore when possession is proved, that possession can only be in the course of import into the State. Regarding the 2[nd] contention it is submitted that the delay of two days is not material to the prosecution case. According to the learned Public Prosecutor, insofar as the forwarding note forms part of the records of the court, the failure to mark that document in evidence will not in any way affect the prosecution case. It is further submitted that insofar as what has been forwarded is the samples produced before the court under the forwarding note of the Crl. Rev. Petition No. 3542 of 2010 **-5-** court, there is no reason to suspect that the very same samples which were drawn from the contraband articles were not the ones sent for chemical analysis. 5. I have considered the rival contentions in detail. 6. Very reluctantly I am forced to accept the contentions of the petitioner in view of the decisions cited by the revision petitioner. Admittedly, what has been proved is only possession. For possession, there was in fact a Section for prosecuting the petitioner, which is Section 58 of the Abkari Act, under which no charge has been laid against the petitioner. The Division Bench of this Court has, in **Mohanan's case (supra),** categorically held that Section 55 (a) is applicable only when persons illegally import or transport liquor or is in possession of liquor while illegally importing or transitting. 7. I have gone through the evidence of the prosecution witnesses. None of them even mention about any import, export, transport or transit so as to draw an inference that the possession by the revision petitioner was Crl. Rev. Petition No. 3542 of 2010 **-6-** in the course of import, export, transport or transit. That being so, the decision of the Division Bench is squarely attracted to the facts of this case. 8. I also find merit in the other contentions also. In the deposition of the concerned Excise Officers, they have not even attempted to explain why there was delay of two days in producing the contraband articles and samples before the court. The petitioner had specifically raise this point before the appellate court, who simply accepts the decision of the Magistrate without stating as to why the contention of the revision petitioner cannot be accepted. 9. Of course, it may not be so fatal to the prosecution case that the forwarding note was not marked in evidence, insofar as it is part of the records of the Magistrate and in fact it is through the Magistrate that samples were sent along with the forwarding note for chemical analysis. But, the least the prosecution could have done is to get the Excise officers concerned to state in evidence that it was the very same samples which were Crl. Rev. Petition No. 3542 of 2010 **-7-** drawn from the contraband articles seized, which were forwarded for chemical analysis under the forwarding note. In the deposition of the witnesses, there is not even a reference to the same. That being so, the decision of this Court in **Anandan's** case is squarely attracted on this point. 10. In view of my above findings, I am inclined to give the benefit of doubt to the accused in this case. Accordingly, I acquit the revision petitioner giving him the benefit of doubt. His bail bond is cancelled and he shall be set at liberty forthwith. The fine amount, if already deposited by the revision petitioner, shall be refunded to him. Before parting with this case, I must necessarily make some adverse remarks against the Excise Officers who gave evidence and also the Public Prosecutor who conducted the case. I am of opinion that the revision petitioner in this case escaped from conviction only because of the shabby way in which the prosecution was conducted. The witnesses did not say what they ought to have stated in Crl. Rev. Petition No. 3542 of 2010 **-8-** evidence while proving the prosecution case in a prosecution under the Abkari Act and neither the witnesses nor the Public Prosecutor applied their mind while conducting the case. Probably it is because of these reasons that many of the abkari cases in the State are being acquitted. The Commissioner of Excise and the Secretary of the Government, Excise Department shall give serious attention to these facts to prevent such failures in future. The Registry shall forward a copy of this order to both the Commissioner of Excise as well as the Secretary of Excise Department of the Government of Kerala for appropriate action. The Criminal Revision Petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/