Babu vs State of Kerala

N.K. Balakrishnan, J.—These appeals are filed by A1 and A2 respectively who were convicted by the learned Addl. Sessions Judge, Fast Track Court-II (Ad hoc), Thrissur for offence punishable under Sec. 58 of Abkari Act. They were sentenced to undergo R.I. for 6 months and to pay Rs. 1 lakh as fine and in default to undergo R.I. for 6 months. The charge sheet was laid against them alleging offence under Sec. 55(i) of Abkari Act also but they were acquitted of that offence.

The case of the prosecution is that PW1, the Sub Inspector of Police was checking vehicles by parking the jeep near Safa Hospital situated about 100 meters towards west of Guruvayoor private bus stand. An autorickshaw driven by the 2nd accused was seen coming towards the place where the S.I. was checking the vehicle. On seeing the police party, the autorickshaw suddenly turned towards the same side from which it came. PW1, the S.I. of Police felt suspicion. They chased the autorickshaw and by keeping the police jeep in front of the autorickshaw prevented the autorickshaw from proceeding further. The driver of the autorickshaw and the passenger though made an attempt to escape were apprehended by the police. On examination a wooden box placed in the back seat of the autorickshaw was seen. It was covered at its top with newspapers and tied with MO4 coir. When that box was taken out and opened, it contained hard board box, inside which 24 bottles of 750ml each of V.S.O.P. Ex Shaw Premium Brandy were found. Besides, there were 23 bottles of 180ml each of XXX Rum with company label ''Cock Fighter''. The accused were arrested then and there. The contraband articles were sealed and labeled. The properties were seized as per mahazar. Based on the seizure mahazar the occurrence report was prepared. After conducting investigation the charge sheet was laid against both accused.

PW1 to PW7 were examined and Exts.P1 to P9 were marked. MO1 to MO5 were also identified and marked.

Learned Sessions Judge found that the wooden boxes mentioned above were held and possessed by the accused. Though there was a contention that it was illegally transported for sale that part of the case was found against. But the court below found that the accused was not having any licence or permit for keeping possession of the liquor mentioned above. Hence the liquor possessed was found to be illegal and as such they were convicted under Sec. 58 of the Act.

Learned counsel appearing for both sides would submit that there is inconsistency regarding the evidence of taking of sample. In the seizure mahazar it was not mentioned that any of the bottle having company seal was opened and it was tasted and smelt by the officials. But in evidence it was stated by PW1 and PW4 that 6 bottles containing the company seal were opened, smelt and tasted, which according to the defence is against the facts mentioned in Ext.P1. Not only that, according to the defence, the samples received in the laboratory were six sealed packets each having a factory seal with printed label marked 1 to 6. Three sealed bottles marked 1, 2 and 3 each with a printed label VSOP Exshaw Premium Brandy, each contained 750ml of clear and amber coloured liquid. Though it may appear that there is slight inconsistency with regard to the samples, it is argued by the learned Public Prosecutor that one bottle which was opened to smell and taste was not the one taken as sample whereas the three bottles of 750ml each and three other bottles of 180ml each having the company seal were sent for chemical examination as that can be seen from Ext.P7 series forwarding note. The description of those bottles as seen in the seizure mahazar and forwarding note would undoubtedly make it clear that those three bottles, being the first item, were the three bottles measuring 750ml having the company seal mentioned earlier. The other bottles of 180ml each of XXX Rum were having the company name and seal as mentioned above. The contention that there was change of sample bottles sent to the lab cannot be accepted. Similarly the contention that there is irreconcilable inconsistency which would vitiate the prosecution also cannot be sustained. The court below has in the light of the facts narrated in the seizure mahazar, which is a contemporaneous record, held that while taking the samples, those bottles having company seals were not opened but those bottles in the same position were labeled and sealed and sent to the laboratory through court along with the forwarding note, the copy of which is marked as Ext.P7. That is further make clear from the chemical examiner''s report, Ext.P8.

The other argument that is advanced by the learned counsel for A2, the driver of the autorickshaw is that there is no evidence to show that he had knowledge that in the wooden box there were two types of liquor bottles as mentioned above. But the conduct of the accused in turning back the autorickshaw on seeing the police party and that autorickshaw could be stopped only when the police jeep chased and kept the police jeep in front of the autorickshaw would sufficiently reflect on the mental condition of the driver of the autorickshaw that it was with his knowledge that the liquor bottles were taken in that autorickshaw, for otherwise there was no reason for him to escape from the scene on seeing the police party. Therefore, the contention that if at all only A1 can be held liable and that A2 cannot be held liable cannot be sustained. Both of them are held equally liable for carrying the liquor bottles mentioned above.

The next point that has been advanced by the learned counsel for the appellants is that the total quantity of the liquor possessed by them is only 22.14 liters. There is no case for the prosecution that those liquor bottles were illegally imported from another State. All those bottles were in sealed condition having company seals. Therefore, though the petitioners were not having the bills for keeping possession of the same, it can be found that the liquor contained in those bottles was not illicit liquor or spurious liquor but the liquor which was available to be purchased from authorised dealers. Therefore, the learned counsel submits that even though the accused could not produce the bills, it can only be said that they were in possession of excess quantity of brandy and XXX Rum. In other words, it can be held that they were not in possession of illicit liquor, but they were held to be in possession of quantity in excess of the permitted quantity. Hence, the offence would lie only under Sec. 63 of the Abkari Act. Therefore, to that extent the appeal is to succeed.

In the result, these appeals are allowed in part. The conviction and sentence passed against the appellants for the offence under Sec. 58 of Abkari Act are set aside. They are found guilty of the offence under Sec. 63 of Abkari Act and they are sentenced to undergo imprisonment till the rising of the court and to pay Rs. 5,000/- each as fine and in default to undergo S.I. for one month. The amount, if any, deposited by the appellants in terms of the order of suspension passed by this Court shall be given credit to. If any excess amount is deposited, it shall be refunded to the parties. The appellants will appear before the Addl. Sessions Judge Fast Track Court-II (Ad hoc), Thrissur on 14.2.2012 to undergo imprisonment till the rising of the court.