B. Prakasha Shetty vs State of Kerala

N.K. Balakrishnan, J.—The appellant was convicted by the learned Additional Sessions Judge (Adhoc -2), Kasaragod for offence punishable u/s 55(a) of Abkari Act. He was sentenced to undergo rigorous imprisonment for 1 year and to pay Rs. 1 lakh as fine and in default, he was directed to undergo R.I. for 3 months. This appeal is directed against the said sentence.

The case of the prosecution is that on 14.02.2001 at about 10:00 P.M., PW1, the additional S.I. and other police officials were on patrol duty and while so the appellant was found transporting 384 bottles of Highway Fine Whisky in 8 cases in an auto rickshaw bearing No. KL-14/B driven by him. The accused did not stop the vehicle as demanded by the police but he proceeded to a distance of 25 meters, there he stopped the vehicle and immediately ran away. He was chased by the police officials and was apprehended. He was brought near his auto rickshaw which was stopped by the side of the road. When examined 8 cases of IMFL, each containing 48 bottles of 180 ml each were found in the auto rickshaw. The accused was therefore arrested for which Ext.P1 arrest memo was prepared. Two bottles were taken as sample and those bottles were sealed and labeled. The remaining bottles, the auto rickshaw and other papers were taken to custody by the police after preparing Ext.P2, the seizure mahazar. The accused and the contraband articles were taken to the police station. Ext.P3, the FIR was registered. After conducting investigation, charge sheet was laid against the accused.

PW1 to PW5 were examined and Exts.P1 to P13 were marked. Exts. D1 and D2 were also marked on the side of the defence.

The learned Additional Session Judge, after scanning the evidence, found the prosecution case true and acceptable and thus the accused was convicted and sentenced as mentioned above.

The appellant contends that the court below failed to consider the defence version that one Damaodara who was involved in Abkari cases was on enemical terms with the appellant and at his instance a false case was foisted. It is also contended that though that Damodara and another witness were cited by the prosecution, they were not examined and as such serious prejudice was caused to the accused. It is further argued by the learned senior counsel for the appellant that all the other liquor bottles other than the two bottles were not produced before court at the time of trial and as such the accused is answerable only for possession of 360ml of liquor. The learned Public Prosecutor strongly resisted the argument advanced by the learned counsel for the appellant. The contention that the case was foisted at the instance of one Damodara is only a story invented by the accused. Exts. D1 and D2 were produced by the accused to contend that the case registered against Damodara mentioned above was under the Abkari Act. It is not a case where Damodara mentioned above did depose against the appellant so as to contend that it was at the instance of Damodara the case was registered.

PW1 was the Additional S.I. of Manjeswaram police station during the relevant period. PW2 was the Assistant S.I. of that police station. PW5 was the Sub Inspector of police, Manjeswaram who conducted the investigation in this case. PW3, the witness to the scene mahazar did not support the prosecution. PW4 was examined to prove that the auto rickshaw in which the contraband articles were transported belonged to him, that it was purchased by him from one Latheef and that the aforesaid auto rickshaw was sold by him (by PW.4) to the accused as per Ext.P7 agreement. That agreement was seized by the police as per Ext.P8 Mahazar. It was stated that Latheef mentioned above was the RC owner of that vehicle. That was not disputed by the defence.

PW1 and PW4 have testified before court that the auto rickshaw driven by the appellant was attempted to be stopped and that the appellant stopped the vehicle at a distance of about 25 meters and thereafter the accused got down from the auto rickshaw and tried to flee from that place. He was chased by the police officials and was apprehended by them. He was thereafter brought to the auto rickshaw which was stationed by him by the side of the road. The evidence given by them that there were 8 cases of IMFL (total 384 bottles) each bottle containing 180 ml each. The accused could not account for possession of the same. He was thus arrested. Ext.P1, the arrest memo was prepared. Their evidence is also clear and convincing that two bottles each were taken as sample and those bottles were sealed and labels were affixed then and there. Ext.P2 is the seizure mahazar in which the entire facts were narrated. Ext.P2 being a contemporaneous record, prepared at the time and place of arrest of the accused and the seizure of the articles, must certainly carry due weight. The contention that a false case was registered against the accused at the behest of another person who was involved in Abkari cases is only a figment of the fertile imagination of the defence, the learned Public Prosecutor submits. Since the seizure of all these liquor bottles are specifically noted in Ext. P2 mahazar and since it reached the court on the next day itself i.e. on 15.02.2001, it has to be held that the seizure of the contraband articles was duly reported to the court. Though PW1 and PW2 were cross-examined in extenso their credibility could not be shattered. It is argued by the learned senior counsel appearing for the appellant that the court below has observed that though summons was served, those witnesses did not turn-up to give evidence. If the witnesses declined to appear, court below should have taken coercive steps to secure the presence of the witnesses, the learned counsel submits. Though it was contended that the accused was a social worker in the committee formed for prohibition of liquor and so the case was foisted against him it remained in the realm of suggestion alone.

The evidence given by PW1 and PW2 would show that they were on regular patrol duty and while so they received a reliable information that liquor was being transported in an auto rickshaw who actually conveyed that information is not something to be probed by the court nor is the police bound to disclose it. The court has analysed the evidence given by PW1 and PW2 and found that the liquor bottles mentioned above were found in the auto rickshaw and were seized as per Ext.P2 mahazar. Ext.P2 fully corroborates the evidence regarding seizure. I find no reason to hold otherwise.

The main argument advanced by the learned counsel is that since the liquor bottles which were returned to the police were not produced at the time of trial it has to be held that there is no legal evidence to prove the seizure of the same. It is too tenuous a plea to be countenanced, the prosecution contends. The properties were produced before court and those properties were sent back to be retained by the police. When the police was directed to produce the articles, the present Station House officer searched for the properties. It was reported that the liquor bottles were destroyed due to dumping of articles in the thondi room of the police station. Ext.P5 is the property list signed by PW1, by which thondi articles were produced before court. There is an endorsement made by the court evidencing receipt of those articles and the court returned the same for safe custody. That endorsement was made by the court on 16.02.2001 itself i.e. on the second day of the seizure of the articles, when those properties were produced before the court below. The trial court has relied upon the endorsements so made by the learned Magistrate on Ext.P5. The fact that subsequently those liquor bottles were destroyed is no reason to say that the seizure evidenced by Ext.P2 and its production before court as evidenced by Ext.P5 cannot be made use of by the prosecution. The very fact that those thondi articles seized on 14.02.2001 were produced on 16.02.2001 would vouchsafe for the correctness and truthfulness of the case put forward by the prosecution regarding the seizure of those articles.

It was submitted by the learned Public Prosecutor that there was subsequent notification as per which the thondi articles were allowed to be destroyed after preparing the mahazar/inventory of the same. Be that as it may, the fact that the contraband articles were seized and were produced in court within 2 days will negative the contentions to the contrary advanced by the accused. The learned trial Judge has correctly accepted Ext.P5 and Ext.P13, the report filed by the present police officer and also other circumstances to hold that the contraband articles seized from the possession of the accused were produced in court without delay. Since the seizure of the articles from the auto rickshaw driven by the accused could be proved to the hilt, it is not necessary to probe further as to who was the owner of the auto rickshaw. That apart there is evidence to show that, the auto rickshaw stood in the name of one Latheef, from whom, PW4 purchased the same, who later sold it to the accused as per an agreement. The accused could not account for possession of 384 bottles of highway fine whisky. There was no case for the accused that he happened to be in possession of the same under any lawful authority or under a permit issued by a competent authority. Hence the presumption u/s 64 of the Abkari Act is also available to show that the accused has committed the offence in regard to the liquor bottles seized from his possession. Ext.P9, the copy of the Forwarding Note shows the impression of the specimen seal affixed on the sample bottles. The report of the Chemical Examiner shows that the seals shown on the bottles were intact and found tallied with the sample seal provided. The sample contained 41.21% by volume of ethyl alcohol.

In the light of the evidence and circumstances, the court below rightly found the appellant guilty of the offence punishable u/s 55(a) of Abkari Act.

The appellant was sentenced to undergo R.I. for one year and to pay Rs. 1 lakh as fine and in default, to undergo R.I. for three months. Considering the quantity of the liquor bottles seized from the possession of the accused, I find that no modification is required with regard to the sentence as well.

In the result, this Criminal Appeal is dismissed confirming the conviction and sentence passed against the appellant.