V.AMMED v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934** ## **Crl.Rev.Pet.No. 2565 of 2004 (A)** **-------------------------------CRA.566/2000 OF III ADDL. SESSIONS COURT, KOZHIKODE CC.222/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM** **-----------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **---------------------------------------------------------------------** **V.AMMED, AGED 34 YEARS, S/O.SHUKKOOR, VALAYAM AMSOM DESOM KOZHIKODE DISTRICT.** **BY ADV. SRI.MOHANAN V.T.K.** ## **RESPONDENTS/RESPONDENT/COMPLAINANT :** **---------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.2565 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of December, 2012** ## **O R D E R** The petitioner is the accused in Calendar Case No.222/1997 before the Judicial First Class Magistrate's Court, Nadapuram. He was prosecuted for an offence punishable under Section 55 (a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. The complaint against the petitioner as stated in paragraph 2 of the judgment of the Magistrate is as follows: “2. x x x x x x x. On 9.4.97 in the morning, the Excise Inspector attached to Nadapuram Excise Range Office and party, while conducting routine patrolling in Iringannor area, at about 9AM, a scooter bearing Reg.No.KRN 4323 was seen riding through Peringathoor-Nadapuram public road. Apprehending, when signalled, it was not stopped, thereby chased and after stopping it when searched, 8.640 litres of Indian made foreign liquor in 48 bottles of 180 ML each was seen hided in the vehicle. These bottles were having no label of the Kerala State Beverages Corporation. Accused was having no licence or permit for the possession or transportation of such a quantity of liquor. Accused was arrested from the spot. Sampling was done, property including the scooter were brought to the Excise Range Office and Cr.No23/97 was registered. The properties including the sample collected from the spot was later produced before the court. After completing the investigation this complaint was filed against the accused alleging offences punishable u/s.55(a) of the Kerala Abkari (amended) Act 1995 and Rule 9 of the Foreign Liquor Rules.” Crl. Rev. Petition No.2565 of 2004 **-2-** 2. The prosecution examined PWs 1 to 4 and marked Exhibits P1 to P4 and MO1 series and MO2. The accused did not adduce any evidence. After considering the evidence adduced, the Magistrate convicted the petitioner and sentenced him to suffer simple imprisonment for a period of six months and to pay a fine of Rs.25,000/- with a default sentence of simple imprisonment for another two months. The petitioner filed Crl. Appeal No.566/2000 before the Sessions Court, Kozhikode Division, in which the conviction and sentence were confirmed. The petitioner is challenging the judgments of the courts below. 3. The petitioner raises two contentions. The first is that there is no reliable evidence to prove the prosecution case. According to the petitioner, the only evidence available is the interested testimonies of the excise officers namely PWs 1 & 4. The independent witness for the seizure mahazar did not support the prosecution case and turned hostile. That being so, there is no reliable evidence to prove the prosecution case, is the first contention. The Crl. Rev. Petition No.2565 of 2004 **-3-** 2[nd] contention is that in this case the ingredients of Section 55 (a) of the Abkari Act is not attracted. According to the petitioner, Section 55 (a) is attracted only if there is import of liquor into the State in contravention of the Act and Rules. The petitioner contends that here there is no allegation that the petitioner imported liquor from another State into Kerala State. It is further submitted that the fact that the bottles did not contain the labels of Kerala State Beverages Corporation is no ground to infer commission of offence under Section 55 (a), as laid down by this Court in **Narayanan Nair v. State of Kerala [2011 (3) KLT 722]** . Therefore, according to the petitioner, the prosecution has not proved any offence punishable under Section 55 (a) of the Abkari Act and hence the petitioner is entitled to an acquittal in this case. 4. On the other hand, the learned Public Prosecutor would contend that the ingredients of Section 55 (a) has been alleged and specifically proved in this case. He submits that the total quantity of liquor transported by the Crl. Rev. Petition No.2565 of 2004 **-4-** petitioner is 8.640 litres. Nobody can transport such quantity of liquor without a valid permit or licence, which is prohibited under the Foreign Liquor Rules and since the petitioner was actually transporting liquor in contravention of the rules, the same constitutes an offence under Section 55 (a). Regarding the other contention, the learned Public Prosecutor would contend that there is no inviolable rule that without corroboration by independent witnesses, the evidence of excise officers cannot be the basis of a successful prosecution in an abkari case. He submits that here the evidence of PWs 1 & 4 are cogent and convincing. There is no allegation that they had any illegal motives in prosecuting the petitioner also. Further it is pointed out that although the seizure mahazar witnesses did not fully support the case of prosecution, they admitted their signatures in the mahazar and PW3 actually admitted having seen the excise officers seizing some materials from the scooter, although he did not say that the same was liquor. PW2 also supported the apprehension of the person Crl. Rev. Petition No.2565 of 2004 **-5-** and the scooter although he did not identify the petitioner as the person, who was apprehended by PWs 1 & 4. Therefore, according to the learned Public Prosecutor, the prosecution has proved the case against the petitioner beyond any reasonable doubt and therefore he is not entitled to an acquittal as argued by the counsel for the petitioner. 5. I have considered the rival contentions in detail. 6. As far as the occurrence is concerned, I am satisfied that the prosecution has adduced reliable and cogent evidence to prove the occurrence. PWs 1 & 4 categorically stated that they had prior information regarding illegal transport of Indian made foreign liquor and when they saw the scooter driven by the petitioner, they signaled him to stop, but he did not stop, but rode on. PWs 1 & 4 chased him and after chasing for about 1 ½ kms, the petitioner abandoned the scooter and tried to run away. PWs 1 & 4 chased him and caught him. He was brought back to the scooter and from the scooter Crl. Rev. Petition No.2565 of 2004 **-6-** 8.640 litres of Indian made foreign liquor in 48 bottles of 180 ml. each were seized. Their evidence is certainly cogent and convincing. In fact nothing could be brought out in cross-examination by the petitioner to discredit their evidence. The independent mahazar witnesses, although turned hostile, supported the prosecution case to a great extent by admitting that they signed the mahazar and they witnessed the apprehension of one person and a scooter and seizure of some material from the scooter although they did not identify the petitioner as the person apprehended and liquor as the contraband seized. The petitioner has no case that they had any illegal motivation in arresting and prosecuting the petitioner also. The samples on analysis by the Chemical Examiner, were found to contain ethyl alcohol. The petitioner does not raise any contention regarding the contraband being IMFL and the sampling thereof. As such, the occurrence of transport of 8.640 litres of liquor by the petitioner has been certainly proved beyond any reasonable doubt. Crl. Rev. Petition No.2565 of 2004 **-7-** 7. The next question is as to whether the proved facts would constitute an offence under Section 55 (a). 8. Section 55 (a) reads thus: “ **55. For illegal import, etc.-** Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or” Although the petitioner would contend that the transport should also be in the course of import, I am unable to agree. The terms; 'import', 'export', 'transport' and 'transit' are separately defined in the Abkari Act as follows: “ **3. Interpretation.-** In this Act, unless there be something repugnant in the subject or context:- x x x x x x x x (16) **"Import"** means to bring into the State. (17) **"Export"** means to take out of the State. (17A) **"Transit"** means to move from one place in a State to another place in that State or to any other state through the territory of the State of Kerala. Explanation:- In this clause, "State" means a State other than the State of Kerala and includes a Union Territory. (18) **Transport:-** "Transport" means to move from one place to another within the State.” If import is defined to mean bringing into the State, then Crl. Rev. Petition No.2565 of 2004 **-8-** the element of transport is inherent in the same. Therefore, if the intention of the legislature was to make transport in the course of import only as punishable under Section 55 (a), it was not necessary to include 'transport' separately in Section 55 (a). Therefore, the four words 'imports', 'exports', 'transports' and 'transits' in Section 55 (a) have to be read disjunctively as separate offences. This is all the more so, since the Act defines all the four words separately, giving them distinct and separate meanings, although going by the ordinary meaning of the word 'transport', transporting is an essential part of the act of 'import', 'export' and 'transit'. Therefore, even if not in the course of import, if a person 'transports' liquor within the State as defined in Section 3(18) of the Abkari Act, in contravention of the provisions of the Act or Rules or Orders made under the Act, the offence under Section 55 (a) is complete even without an allegation of import. In other words transport within the State is also an offence as distinct from import from outside the State. The decision in Narayanan Nair's Crl. Rev. Petition No.2565 of 2004 **-9-** case (supra) does not lay down any different law. In that decision, the question as to whether the transport should be in the course of import or export was not an issue at all. On the other hand the decision proceeds on the basis that 'transporting' liquor will also come within the mischief on Section 55(a) of the Abkari Act. In that decision it was held that it is not a mere journey of a person in a vehicle in which, a contraband article is kept which makes him liable for 'transportation' of liquor, but he must 'move' the article with the intention to move it. Therefore, that decision also accepts the fact that transportation of liquor within the State in contravention of the Act and Rules and Orders under the Act attracts the offence under Section 55(a) of the Act. In fact all the decisions on the subject are those dealing with the question as to whether the 'possession' mentioned in Section 55 (a) should be in the course of import, export, transport or transit or not. The reasoning for holding that the 'possession' in Section 55 (a) should be in the course of 'import', 'export', 'transport' and 'transit' is Crl. Rev. Petition No.2565 of 2004 **-10-** that Section 58 prescribes a lesser punishment for possession of liquor knowing it to have been unlawfully imported, transported or manufactured or knowing that the duty, tax or rental payable under the Act has not been paid, as against mere possession without the knowledge of the illegality of the possession, for which a higher punishment is prescribed. See the decision of the Division Benches in **Surendran V. Excise Inspector, [2004 (1) KLT 404]** and in **Cr.R.P. No.220 of 2001** . That reasoning does not apply to 'transport', which expression has been separately defined like the words 'import', 'export' and 'transit'. Of course in some of the decisions, while discussing the issue as to whether the possession mentioned in Section 55(a) should be in the course of 'import', 'export', 'transport' or 'transit', in some places the words 'transport' and 'transit' were omitted to be mentioned cannot be construed to mean that those decisions laid down the law that the transport should also be in the course of 'import' or 'export. As I already said, the issue as to whether the 'transport' also Crl. Rev. Petition No.2565 of 2004 **-11-** should be in the course of 'import' or 'export' was not an issue in any of those decisions. The legislative intention is clear to the effect that each of the act is separately punishable under Section 55 (a), from the fact that the legislature chose to include the word 'transport' which is separately defined in the Act giving separate meaning distinct from 'import', 'export' and 'transit' also in the Section, although 'transport' in its ordinary meaning is implicit in the act of 'import', 'export' and 'transit', insofar as there cannot be any import, export or transit without transporting. Here, transport of 8.640 liters of Indian made foreign liquor by the petitioner without a valid licence or permit has been proved by cogent evidence. Possession and transport of 8.640 litres of Indian made foreign liquor without a valid license or permit is clearly prohibited under the Act and Rules in view of Rule 9 of the Foreign Liquor Rules. Therefore, I have no doubt in my mind that the petitioner is guilty of the offence punishable under Section 55 (a) of the Act. As such, clearly the petitioner is liable to Crl. Rev. Petition No.2565 of 2004 **-12-** be convicted and punished under Section 55 (a) of the Act, which only has been done by the courts below. Hence, I uphold the conviction entered by the Courts below. The counsel for the petitioner makes a fervent plea for reduction of the sentence. Sentence of minimum fine of Rs.25,000/- is compulsory for an offence under Section 55(a) of the Act. If at all this Court can reduce punishment that can only be in the matter of imprisonment. Taking into account the facts and circumstances of the case, I reduce the period of imprisonment to three months. But I enhance the fine to Rs.50,000/- (Rupees fifty thousand only). In default of payment of fine, the petitioner shall undergo simple imprisonment for a further period of three months. The Criminal Revision Petition is disposed of as above. Sd/S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/