Mohanan vs State of Kerala

K. Ramakrishnan, J.—The accused in S.C. No. 481/2002 on the file of the Additional Sessions Court, Adhoc-III, Thrissur is the appellant herein.

The appellant was charge sheeted by the Excise Inspector, Chavakkad in C.R. No. 15/2000 under Section 55(a) of the Abkari Act.

The case of the prosecution in nutshell was that on 29.11.2001 at about 6.30 p.m. at the pathway leading to Ayyappa Swami temple in Elavally village, the accused was found illegally transporting three bottles of American Doctor''s Brandy each containing 750 ml in a big shopper and thereby he had committed the offence punishable under Section 55(a) of the Abkari Act.

After investigation final report was filed before the Judicial First Class Magistrate Court, Chavakkad and it was taken on file as CP. 27/2002. Thereafter the case was committed to the Court of Sessions, Thrissur and the Sessions Court took cognizance of the case as SC. 481/2002 and thereafter it was made over to Additional Sessions Court, Adhoc-III, Thrissur for disposal.

When the appellant appeared before 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 the 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 5 were examined, Exts. P1 to P10 and MOs 1 to 3 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code (hereinafter referred to as ''the Code'') and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that no article was seized from his possession and it was seized from some other place and he had been falsely implicated in the case. Since the evidence in this case did not warrant acquittal under Section 232 Code, the learned Additional Sessions Judge directed the accused to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. One lakh, in default, to undergo rigorous imprisonment for three months and set off was allowed for the period of detection already undergone by him under Section 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant before the court below.

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

The learned counsel for the appellant submitted that the independent witness to the seizure has turned hostile and evidence on the other witnesses is not probable which probablise the case of the accused that he was taken from some other place and he has been falsely implicated. Further even assuming that the entire prosecution case is admitted, then also it will only come under Section 63 of the Abkari Act in view of the dictum laid in Sabu Vs. State of Kerala, as it was having seal of Kerala Beverages Corporation and it cannot be said to be an illicit liquor.

On the other hand, the learned Public Prosecutor submitted that once it is proved that excess quantity in violation of the Rule has been found to be in possession of the accused, then it can be presumed that it was intended for transporting or sale invoking the presumption under Section 64 of the Abkari Act and so the court below was perfectly justified in convicting the appellant for the offence under Section 55(a) of the Abkari Act and Section 63 is not applicable to the facts of this case.

The points that arise for consideration as to whether: (1) the court below was justified in convicting the appellant under Section 55(a) of the Abkari Act, (2) if so, the sentence imposed is proper and legal.

Point No. 1: The case of the prosecution as emerged from the prosecution witnesses was that on 29.11.2000 while PW4, the Preventive Officer, Excise Range, Chavakkad was conducting patrol duty along with PW1 and others and when they reached near the place of occurrence namely the pathway leading to Ayyappa Swami temple, they saw the accused standing near the junction with MO2 big shopper and on seeing the excise party, he tried to go away from that place and they intercepted him and examined the big shopper and they found 3 bottles of American Doctor''s Brandy of 750 ml each, namely MO1 series packed in MO3 brown paper. They examined the contents and they were satisfied that it was Indian made foreign liquor. Further, since he was in possession of excess quantity, after taking sample, conducting body search and after arresting the accused as per Ext. P4 arrest memo seized articles as per Ext. P1 seizure mahazer in the presence of PWs 2 and 3 and thereafter came to the excise office and prepared Ext. P5 occurrence report as Crime No. 15/2000 of Chavakkad excise range and produced the accused before court along with Ext. P7 remand report. Material objects were produced before court along with Ext. P6 property list and on the basis of the requisition given by PW4, the sample was sent for chemical examination and Ext. P10 Chemical Analysis Report was obtained which showed that it contained ethyl alcohol of 42.81% by volume. Further the investigating officer, PW5, the Excise Inspector prepared Ext. P9 sketch plan of the place of occurrence and after completing the investigation, PW5 submitted final report before the court.

Pws 2 and 3 are the independent witnesses to seizure, who did not support the case of the prosecution. So they were declared hostile. So the only evidence available to prove the incident is that of PW4, the Preventive Officer, PW1, the officer who accompanied the detecting officer. Both had categorically stated that they were on patrol duty on that day. They saw the accused standing in the junction carrying MO2 big shopper and on seeing the excise party, he tried to away from the place and so they stopped him and on examination of the bag, they found that three bottles of 750 ml each brandy was seen packed in MO3 brown cover and thereafter, after complying with the formalities taken sample and he had sealed bottles as per Ext. P1 mahazer. He arrested the accused and came to excise office and registered the crime. This aspect was corroborated by the evidence of PW1 as well. Though suggestion was made to Pws 1 and 4 that no article was seized from the possession of the accused and it was taken from some other place and he has been falsely implicated, that was denied by them. Except that suggestion, no other evidence was adduced on the side of the accused to prove false implication as contended by him.

It is settled law that merely because seizure witness had turned hostile is not a ground for acquittal of the accused and there is nothing wrong for the court to rely on the evidence of the official witness to prove seizure if it is trustworthy. In this case, there is nothing brought out to discredit the evidence of PW1 and PW4 regarding the seizure and arrest of the accused. Further, the articles were produced before court without delay on the same day and so there is no possibility of tampering as well. Further Pws 1 and 4 identified the labels on bottles also before court and Ext. P10 report shows that it contained ethyl alcohol. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the accused was found to be in possession of 2.250 litres of Indian made foreign liquor.

Then the question is whether it will attract the offence under Section 55(a) of the Abkari Act or it may fall under Section 63 of the same Act. Here the accused was found standing with MO2 big shopper bag and he was not in transit as such or transporting the liquor at that time. So the dictum laid down in Meenakshi v. Excise Circle Inspector (1995(1) KLT 738 ) is not applicable as such as even in that decision it was later confirmed by the Division Bench in Surendran Vs. Excise Inspector, that even for attracting the offence under Section 55(a), it has to be proved by the prosecution that it was in the process of import or export or transit. But, in this case, he was found only standing with article in his possession. Further, the mahazer will go to show that it is an article manufactured and sold by Kerala Beverages Corporation as it contained its safety sticker. Section 13 of the Abkari Act only says that no person shall be in possession of excess quantity than the permit given or licence given, but that will not be applicable to personal exemption. Further in the decision reported in Sabu''s case (cited supra), this Court has observed that mere possession of excess quantity alone is not sufficient to attract the offence under Section 55(a) and in such cases, Section 63 alone will be attracted. So in view of the latter decision of this Court, this Court feels that the court below was not justified in coming to the conclusion that the offence will fall under Section 55(a) and convicting the appellant for the said offence. So even assuming that the entire case of the prosecution is accepted, then it may fall only under Section 63 of the Act not under Section 55(a). So the finding of the court below that the appellant is punishable under Section 55(a) of the Abkari Act is liable to be set aside and he is liable to be convicted only for the offence under Section 63 of the Act and he is convicted for the offence under Section 63 of the Act. The first point is answered accordingly.

Point No. 2:

In view of the finding on point No. 1 that the accused has committed the offence under Section 63 of the Abkari Act, the sentence imposed by the court below is also liable to be set aside and he can be convicted for the maximum fine of Rs. 5,000/- or imprisonment or both as provided under Section 63 of the Abkari Act. So the sentence of one year rigorous imprisonment and fine of Rs. One lakh, in default to undergo rigorous imprisonment for three months imposed by the court below under Section 55(a) of the Abkari Act is set aside and the same is modified as follows:

The appellant is sentenced to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for two months. The second point is answered accordingly.

In the result, the appeal is allowed in part. The order of conviction and sentence passed by the court below against the appellant under Section 55(a) of the Abkari Act is set aside and the same is modified as follows:

The appellant is found guilty under Section 63 of the Abkari Act and he is convicted thereunder and sentenced to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for two months.

Office is directed to communicate this order to the concerned court immediately.