Babu vs The Excise Inspector

K. Ramakrishnan, J.—Accused in S.C. No. 139/02 on the file of the Additional Sessions Judge, Fast Track (Adhoc II), Kozhikode is the appellant herein.

The appellant was charge sheeted by the Excise Inspector, Quilandy Excise Range in C.R. No. 110/97 of that Excise Range under Section 55(a) of Abkari Act.

The case of the prosecution in nutshell was that on 24.10.97 at about 12.30 p.m. the appellant was found to be in possession of six bottles of 500 ml. New Master XXX Rum and three bottles of 375 ml Haywards Fine Brandy in the outer veranda of the house with No. XXX/103 of Quilandy Municipality in Mandamangalam desam of Viyyoor amsom of Quilandy Taluk intended to be sold in State of Pondicherry alone in violation of the provisions of Abkari Act and thereby, he had committed the offence punishable under Section 55(a) of Abkari Act.

After investigation, final report was filed before Judicial First Class Magistrate Court, Quilandy and it was taken on file as C.P. No. 31/2001 and thereafter, it was committed to Sessions Court, Kozhikode where it was taken on file as S.C. No. 139/2002 and thereafter, it was made over to Additional Sessions Court, Adhoc No-II, Fast Track, Kozhikode for disposal.

When the appellant appeared before the court below, the learned Additional Sessions Judge, after hearing the Counsel for the appellant and the learned Additional Public Prosecutor of that court framed charge under Section 55(a) of Abkari Act and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 4 were examined and Ext. P1 to P11 and MO1 series, MO2 series and MO3 series were marked on the side of the prosecution. After closure of the prosecution evidence, the appellant was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he is innocent of the same. Since the evidence in this case did not warrant an acquittal under Section 232 of Code of Criminal Procedure, the appellant/accused was called upon to enter on his defence by the learned Additional Sessions Judge. The appellant himself was examined as DW1 and one witness was examined as DW2 and Ext. D1 was marked on its side while cross examining PW2. After considering the evidence on record, court below found the appellant guilty under Section 55(a) of Abkari Act and convicted him there under and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for six months, set off was allowed for the period of detention undergone by him under Section 428 of Code of Criminal Procedure. Aggrieved by the same, the present appeal has been preferred by the appellant-accused before the court below.

Heard the Counsel for the appellant and the learned Public Prosecutor.

The Counsel for the appellant submitted that neither in the search memorandum nor in the search list, the house number was mentioned. Further, no document has been produced to prove that the appellant was residing in that house and the house was in the exclusive possession of the appellant so as to rule out the possibility of any other person keeping the article in the place from where it was alleged to have been seized by the Excise Officials. Further, neither in the seizure mahazar nor in the property list, the description of the label found on the bottle was mentioned so as to come to a conclusion that it was intended to be sold only in a particular State and it was prohibited to be sold in Kerala. So, even assuming that he was found to be in possession of the same since it is within the permissible limit during that period, no offence under Section 55(a) of Abkari Act is attracted and at the most it may amount to violation under Section 13 of the Act for which punishment is under Section 63 of the Act and not under Section 55(a) of the Act. Further, in the absence of the evidence of the detecting officer who is no more, the burden is on the prosecution to prove beyond reasonable doubt that the articles were produced before court without any tampering in the same condition in which it was seized as well. Further, the nature of seal used has not been affixed in the seizure mahazar. All these things disproves the case of the prosecution that the article which was alleged to have been seized have been produced before court without any tampering and the lower court was not justified in convicting the appellant for the offence alleged and he is entitled to get acquittal.

On the other hand, the learned Public Prosecutor argued that in the absence of the detecting officer''s evidence who is no more, the preventive officer who accompanied the detecting officer has proved the seizure and PW2 was examined to prove that the article seized was given to him for the purpose of production before the court as well as to the Chemical Analysis Laboratory and he has produced the same in the same condition. Further, evidence of PW1 will go to show that the label description contained in the bottle sale in Pondicherry State alone and so, it cannot be said to be a permitted liquor within State of Kerala, possession of which is an offence. So, the court below was perfectly justified in convicting the appellant for the offence alleged and the finding does not call for any interference.

The points that arise for consideration are:

1) Whether the court below was justified in convicting the appellant for the offence under Section 55(a) of Abkari Act?

2) If so, the sentence imposed is proper?

Point No. 1

The case of the prosecution as emerged from the prosecution witnesses was as follows:

On 24.10.97 at about 12.30 p.m, CW11 late Shri. Mohanan, the then, Excise Inspector of Quilandy Excise Range was doing patrol duty along with PW1 Preventive Officer and PW2-the Excise guard and when they reached near Pisharady Kavu temple, he got an information that appellant was selling Indian made foreign liquor from his house by name Kaniyamkulathil Veedu. He sent Ext. P1 search memorandum to court and thereafter, went to that house and conducted search of the house in the presence of PW3 and another and found six bottles of 500 ml. each New Master XXX Rum which is marked as MO1 series and three bottles of 375 ml each Haywards Fine Brandy marked as MO2 series kept in MO3 sack in the kitchen veranda of the house. He examined the contents of the same and satisfied that it was Indian made foreign liquor. He had also found that there was no security sticker of the Kerala State Beverages Corporation seen on the bottle. He had taken two bottles, one bottle each from each item as sample and sealed the same and affixed labels containing the signatures of the witnesses, himself and the appellant and thereafter, seized the sample bottles and MO1 series and MO2 series and MO3 sack after describing the same in Ext. P4 seizure mahazar in the presence of witnesses. He had prepared Ext. P2 Search list. He arrested the appellant and gave intimation regarding the arrest to his relatives as per Ext. P3 and came to Excise Office and registered Ext. P5 Occurrence and Crime Report as C.R. No. 110/97 under Section 55(a) of Abkari Act against the appellant. He produced the appellant along with Ext. P6 Remand report before court and he was remanded to custody and thereafter, he was released on bail. He prepared Ext. P7 Property list and sent the same to court along with Ext. P8 forwarding note through PW3 an Excise Guard on 01.11.97 and it was sent to the lab for analysis and Ext P9 Chemical Analysis report obtained which shows that the sample contained 42.47 and 42.58% by volume of Ethyl alcohol respectively. The investigation in this case was conducted by PW4 who questioned the witnesses and recorded their statements and obtained Ext. P11 Ownership cum possession certificate from Quilandy Municipality in respect of House No. XXX/103 of that municipality from where the contraband articles were seized. He completed the investigation and submitted final report against the appellant.

PW3, the eye witness to the seizure though admitted his signature in Ext. P4 Seizure mahazar he did not support the case of the prosecution that the contraband article was seized from the house of the appellant. He had denied having stated in Ext. P10 when he was questioned by the investigating officer. He had admitted that he knew the appellant and he is a friend of his. He had also admitted that he had signed Ext. P2 search list as well in the cross examination on behalf of the appellant and according to him, he had signed the same from the bus stop at Nandi as requested by the driver of the Excise Jeep one Sivadas who is known to him.

CW11-the detecting officer who is the Excise Inspector of Quilandy Excise Range on the particular day could not be examined as he is no more. PW1-the preventive officer who accompanied CW11 had deposed about the seizure of the article and also proved the documents prepared by CW11, the detecting officer as he is conversant with his handwriting and signature. He had also deposed that on getting information regarding the sale of Indian made foreign liquor from the house of the appellant, CW11-the detecting officer prepared Ext. P1 search memorandum and sent the same to court and thereafter, they proceeded with the place and found the appellant in the house and they explained the purpose of their visit and conducted search of the house in the presence of PW3 and another witness and found MO1 series and MO2 series foreign liquor bottles in the house kept in MO3 sack. PW1 also deposed that CW11 seized those articles as per Ext. P2 search list which contained signature of PW3 and another witness and also the appellant and the signature of the detecting officer. He had further deposed that CW11 had taken sample and sealed the same, affixed labels as described above and thereafter, seized the contraband article along with the sack and the sample after describing the same in Ext. P4 seizure mahazar. CW11 prepared Ext. P3 Arrest memo and informed the arrest to the relatives. Thereafter, they came to Excise Office and CW11 registered Ext. P5 Crime and Occurrence report as Crime No. 110/97 against the appellant. He had identified the signature of CW11 in Ext. P1 to P8 documents prepared by CW11. He had also deposed that till the articles were produced before court, it was in the possession of CW11, the then Excise Inspector. The evidence of PW1 was corroborated by the evidence of PW2-the Excise Guard who accompanied them at the relevant time. He had also deposed that it was he who had taken the articles to court and to the laboratory on 01.11.97 as entrusted by CW11 the then Excise Inspector. It is true that he had deposed as stated in Ext. D1 regarding the date of his working there as 24.11.97. But, it was clarified by PW4 the investigating officer that the date mentioned as 24.11.97 is a mistake for 24.10.97 which appears to be probable as well.

It is settled law that merely because the independent witnesses to the seizure had turned hostile is not a ground to disbelieve the case of prosecution and that is not a ground for acquittal of the appellant as well. It is also settled law that there is nothing wrong for the court to rely on the evidence of official witnesses to prove the seizure if their evidence reposes confidence in the court and convict the appellant for the offence alleged. It is true that it is seen from the evidence of PW1 and PW4 that certain minute things said to have been transpired at the time of seizure and arrest have not been mentioned in their 161 statement when he was questioned by PW4. But, PW4 as well as PW1 had categorically stated that since they were deposing in tune with the things mentioned in Ext. P4 seizure mahazar, there is no practice of writing all the minute things by the Excise Inspector while preparing their 161 statement. So, except that, there is nothing brought out to discredit the evidence of PWs 1 and 2 regarding the seizure and arrest of the appellant along with the contraband articles from the house. So, court below was perfectly justified in coming to the conclusion that prosecution has proved beyond reasonable doubt that the appellant was arrested from the house by the Excise Officials along with the contraband articles.

It is true that in Ext. P1 search memorandum or in Ext. P2 search list, the house number was not mentioned. But, it may be mentioned here in Ext. P1, it was mentioned that they got information regarding the sale of Indian made foreign liquor by the appellant and his house name was shown as Kaniyamkulathil veedu and the address was the same. In Ext. P2 also the house name was shown as Kaniyamkulathil and the appellant had signed the same as well. Further, in Ext. P4, the house number was specifically mentioned and the presence of the appellant was also mentioned and in Ext. P4, it is also mentioned that CW11 had verified the ration card with number 314150 issued for the house number XXX/103 of Quilandy Municipality in respect of which Ext. P11 Ownership cum possession certificate was issued by the Municipal authorities and it is also mentioned in Ext. P4 that in the ration card, the head of the family was shown as Babu, i.e., the appellant who is the accused in the case. So, it is clear from this that the contemporaneous documents produced and the evidence of PW1 will go to show that the search was conducted from the house with number XXX/103 of Quilandy municipality of which the appellant is the head of the family. So, merely because Ext. P11 shows that apart from the appellant, three other persons are also having right and possession of the house and it was stated by PW1 that four persons were residing in the house, it will not make any difference if it is proved by the prosecution that he is the head of the family, then, it can only be presumed that the contraband articles found in the house are in the exclusive possession of the appellant and the burden is on the appellant to prove the contra which he has not established as his case is one of total denial.

The appellant was examined as DW1 to prove that he was not arrested as claimed and he has been falsely implicated in the case. But, he had admitted in the cross examination that he did not make any complaint to the authorities about his false implication. DW2, another witnesses, was examined to prove that the appellant was falsely implicated. But his evidence is also not helpful to prove the case of the appellant as he is an interested witness and wanted to protect the appellant from not being convicted in the case. So, under the circumstances, court below was perfectly justified in coming to the conclusion that the evidence of DWs 1 and 2 is not sufficient to disbelieve the case of the prosecution regarding the seizure of the contraband articles from the house of appellant from where the articles were seized and the arrest of the appellant was effected.

It is true that though the articles were seized on 24.10.97, it was produced before court only on 01.11.97 which is evident from the endorsement made in Ext. P7 property list and also the evidence of PWs 1 and 2. PW1 had categorically stated that from the date of seizure of the article till production before the court, it was in the possession of the Excise Inspector. This aspect has not been challenged in cross examination as well. Further, PW2 had categorically stated that it was he who had produced the article before the court on 01.11.97 and taken from court and taken to Chemical Analysis Lab and produced the same before the laboratory which is evident from Ext. P9 Chemical Analysis report as well. In the decision reported in Ravi Vs. State of Kerala , the Division Bench of this court has held that it is not necessary that the articles seized must be produced forthwith before the court and non-production of the same forthwith alone is not sufficient to acquit the accused. But, at the same time, it must be produced without unnecessary delay and the link between the article and the Chemical Analysis Report has to be established to the satisfaction of the court that it had reached the laboratory tamper proof. So, the evidence of PWs 1 and 2 will go to show that CW11 the Excise Inspector was in possession of the articles till they were produced before the court and it was produced in the same condition in which it was seized. The evidence of PW1 identifying MO1 and MO2 series also will go to show that they tally with the description mentioned in Ext. P4 seizure mahazar as well. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the delay is not fatal and it was properly explained and the prosecution has proved beyond reasonable doubt that articles produced before court are the same articles which were seized from the house of the appellant by CW11 in the presence of PWs 1 to 3 and produced the same before court without any tampering and Ext. P9 Chemical Analysis Report relates to that article.

So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the appellant was found to be in possession of nine bottles of Indian made foreign liquor without any documents.

It is true that mere possession of Indian made foreign liquor which is permitted to be kept within Kerala is not an offence under Section 55(a) of Abkari Act as observed in the decision reported in Ravi Vs. State of Kerala relying on the decision reported in Thomas Vs. State of Kerala [ 2005 (4) KLT SN 58 (C. No. 77)]. It is true that as per the notification during relevant period, the person can possess 4=litres of Indian made foreign liquor without any licence or document. But, it must be an article permitted to be kept in Kerala. Then only, the protection under that notification coupled with Section 13 of the Abkari Act can be attracted.

It is seen from the evidence of PW1 that MO1 series and MO2 series contains labels that it was intended to be sold in Pondicherry State alone. It is true that this description of the label was not mentioned in Ext. P4 seizure mahazar. But, it was categorically mentioned in the document that it did not contain the safety sticker of the Kerala State Beverages Corporation. Under Rule 9 of the Foreign Liquor Rules, only Kerala State Beverages Corporation alone has got the permit to import foreign liquor which was manufactured outside Kerala that do with the permission of the Government. Only two categories of persons were exempted from the same. They are the foreign nationals coming for their visit in Kerala and defence persons to whom the articles were sold from their outlet. So, once it is proved by the prosecution that the article seized was an article which was intended to be sold in Pondicherry State alone, then, possession of the same will amount to import of the article from that State to Kerala drawing the presumption under Section 64 of the Kerala Abkari Act unless the contra is proved by the accused who was found to be in possession of the same. This was so held in Kelukutty C. Vs. State of Kerala, . In this case, the appellant had no case that he had purchased it from any outlet in Kerala for which he is having any document but his case is of one of total denial. So, under the circumstances, the contention raised by the Counsel for the appellant that it is a permissible quantity and no offence under Section 55(a) of Abkari Act can be attracted cannot be accepted. So, the court below was perfectly justified in coming to the conclusion that the appellant had committed the offence punishable under Section 55(a) of Abkari Act and rightly convicted him for the said offence and the finding does not call for any interference.

Point No. 2

As regards the sentence is concerned, court below had sentenced the appellant to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for six months. Considering the nature of offence and its impact on the society, court below was perfectly justified in not giving the benefit of the provisions of Probation of Offenders Act to the appellant. Considering the fact that the articles seized is Indian made foreign liquor though not intended to be sold in Kerala and it may at the most affect the revenue of the State alone and it will not affect the interest of the society as such as in the case of sale of arrack or narcotic substances, the sentence of imprisonment and default sentence imposed appears to be on the higher side. But, the fine imposed is the minimum fine provided and it cannot be said to be excessive as well. So, considering the circumstances, this court feels that retaining the fine amount and reducing the substantive sentence to simple imprisonment for three months and default sentence of three months will be sufficient and that will meet the ends of justice. So, the substantive sentence of two years rigorous imprisonment and default sentence of six months rigorous imprisonment are set aside and the same are modified as follows:

The appellant is sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for three months more.

In the result, the appeal is allowed in part. The order of conviction and sentence of fine of Rs. 1,00,000/- imposed by the court below against the appellant under Section 55(a) are hereby confirmed. But, the substantive sentence of two years rigorous imprisonment and the default sentence of six months rigorous imprisonment are set aside and the same is modified as follows:

The appellant is sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for three months more. Set off is allowed for the period of detention undergone by him in this case under Section 428 of Code of Criminal Procedure. With the above modification of the sentence alone, the appeal is allowed in part.

Office is directed to communicate this judgment to the court below at the earliest.