P.V.SAHAD S/O.AHAMMEDKUTTY Vs STATE OF KERALA

The appellant herein stands convicted under Sections

55 (a) and 58 of the Kerala Abkari Act ( ''the Act'' for short)

in S.C 143/2011 of the Court of Session, Kasaragod.

The prosecution case is that at about 9.45 a.m

on 7.12.2005 at Nilamkayam within the limits of the

Rajapuram Police Station, Kasaragod, the appellant was

found transporting huge quantity of 400 litres of arrack,

contained in 4000 packets of 100 ml capacity, and also 90

litres of spirit contained in three plastic cans (30 litres

each) in the vehicle No.KL-13N-9340 with a pseudo number

KL-14E-8496. The offence was detected by the Sub

Inspector of Police, Rajapuram during his usual patrol.

When he gave signal to stop the vehicle, the driver sped it

away, but the Police party chased it. After running for a

distance, the driver stopped the vehicle and took to his

heals by abandoning the vehicle containing the huge

quantity of spirit and arrack. The person, who ran off and

escaped, was identified as the appellant in this case. The

huge quantity of arrack and spirit was seized as per a

mahazar by the Sub Inspector along with the said vehicle,

and a crime was registered against the accused, who ran

off and escaped. After investigation, the Sub Inspector

submitted final report in court, under Sections 55(a) and 58

of the Act. On committal, the case came up before the

Court of Session, from where it was made over to the

learned Additional Sessions Judge (Adhoc) III, Kasaragod for

trial and disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against him under

Sections 55(a) and 58 of the Act. The prosecution examined

10 witnesses in the trial court, and proved Exts.P1 to P13

documents. There was no property to be identified during

trial because the properties had been by the time produced

before the Assistant Excise Commissioner for necessary

action. However, the inventory prepared by the Assistant

Commissioner of Excise, certified by the Judicial Magistrate

having jurisdiction, was proved in evidence. When examined

under Section 313 Cr.P.C, the accused denied the

incriminating circumstances and projected a defence that he

has nothing to do with the properties seized in this case by

the Police, and that he had not transported any quantity of

arrack or liquor. The accused did not adduce any evidence

in defence.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction, he was sentenced

to undergo rigorous imprisonment for four years each, and

to pay a fine of 1 lakh each under Sections 55 (a) and 58 of

the Act by judgment dated 12.1.2012. Aggrieved by the

judgment of conviction, the accused has come up in appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that there is no

proper and acceptable inventory in this case, and that there

is no satisfactory evidence to identify the appellant as the

person who ran off and escaped by abandoning the huge

quantity of arrack and spirit along with the vehicle.

On the other hand, the learned Public Prosecutor

submitted that the accused was clearly identified at the spot

of detection itself, and that the inventory was prepared by

the Assistant Excise Commissioner as authorised officer, and

it was duly certified by the learned Judicial Magistrate

having jurisdiction.

Of the ten witnesses examined in the trial court,

PW6 is the Sub Inspector who detected the offence. The

crime was also registered by him. He investigated the case,

and he also submitted final report in court. PW1 is the Head

Constable, who assisted the Sub Inspector in the process of

detection. PW2 and PW3 are the independent witnesses

examined to prove the seizure of the contraband articles

along with the vehicle involved. PW4 is only an attestor to

the Ext.P4 scene mahazar, PW5 is the Village Officer, who

prepared the Ext.P5 scene plan, PW7 is the sub Inspector

who conducted some part of investigation including seizure

of the agreement as per which the vehicle in question was

transferred in the name of the accused, PW8 is the

registered owner of the vehicle examined to prove the

agreement of transfer, PW9 is the stamp vendor, who sold

the stamp paper wherein, the Ext.P13 agreement is

prepared and PW10 is the witness examined to prove the

seizure of the Ext.P13 agreement of transfer.

PW6 and PW1 have given definite and consistent

evidence proving the seizure of huge quantity of arrack and

spirit in this case. The evidence of PW6 is that two samples

each were collected from the total quantity of arrack and

also from the quantity of spirit at the spot of detection, and

the four sample packets were well packed and sealed at the

spot of detection itself. The huge quantity of 400 litres of

arrack was contained in 4000 packets of 100 ml capacity

having identical labels. The quantity of spirit was contained

in three plastic cans of 35 litres capacity. From the spirit

also, the required samples were collected by PW6. Labels

containing the signature of the accused and the witnesses

were affixed on the sample bottles as well as the other

properties packed at the spot of detection. The defence

could not bring out anything in the cross-examination of

PW6 or PW1 to discredit their evidence regarding seizure of

the contraband articles. They are definite and consistent

that the huge quantity of liquor and spirit was seen

transported in a Maruti Car with number exhibited as KL14

E-8496. When the Sub Inspector gave signal to stop it, the

driver escaped with the vehicle without stopping it there,

but the Police party chased it. After running for a short

distance, the driver stopped the vehicle, and took to his

heals. Both the witnesses are consistent that the person,

who ran off and escaped is the accused in this case. Their

evidence shows that the two witnesses had clearly seen the

person, and they had sufficient time to have his face and

features imprinted in their mind. On the basis of such

features imprinted in their mind, they identified him

properly and during trial also, they identified the accused as

the person who ran off and escaped. Thus, I find that the

exact identity of the person, who ran off and escaped, by

abandoning the huge quantity of arrack and spirit stands

well proved beyond any reasonable doubt by the evidence

of PW6 and PW1. The prosecution case is that the actual

number of the vehicle is KL-13N-9340, but to transport huge

quantity of spirit and arrack, the accused exhibited a pseudo

number on the vehicle. Ext.P8 is the registration particulars

of the vehicle No.KL-13N-9340 and PW8 is the registered

owner of the vehicle, who had transferred the vehicle to the

accused herein as per the Ext.P3 agreement. Seizure of this

agreement stands proved by the evidence of PW10 and also

the Sub Inspector. PW6 is definite in his evidence that the

correct number of the vehicle was identified at the spot of

detection itself as KL-13N-9340. The chassis number and

engine number were verified at the spot, and he detected

that a pseudo No.KL-14E-8496 was exhibited on the vehicle

with the object of transporting spirit and arrack. Sale of the

vehicle to the accused as per Ext.P13 agreement is proved

by PW8. There is nothing in his evidence in favour of the

accused.

This is a case where the two independent

witnesses examined by the prosecution fully supported the

prosecution. Both the witnesses are definite and consistent

regarding the seizure of arrack and spirit by the Sub

Inspector. They also stated that the driver of the vehicle

wherein it was transported stopped it immediately, and ran

off and escaped. But the quantity of spirit contained in

three plastic cans, and the huge quantity of arrack

contained in so many packets were seized by the Sub

Inspector at the spot of detection. They had clearly

witnessed the seizure, and they had attested the seizure

mahazar consciously. The two witnesses identified their

signature in the detection mahazar proved as Ext.P3, and

the witnesses also identified their signature on the label

affixed on the sample bottles. The sample bottles were

produced by the Police in court on the next day itself along

with a forwarding note. The Ext.P12 chemical report shows

that the samples were detected as illicit liquor and spirit.

The liquid contained in one set of samples was identified as

spirit, and the other was identified as illicit liquor. Of course,

it is true that there is no clear and satisfactory evidence

proving that it was arrack. That is why probably the court

below made conviction under Section 58 of the Act.

I find that the prosecution case stands well

proved by the evidence of PW6, PW1, PW2 and PW3.

Very rarely, the independent witnesses support

the prosecution in cases under the Act. But here I find two

witnesses fully supporting the prosecution corroborating the

detecting officer on all material particulars including the

type of the vehicle, the nature of the liquor and spirit, and

also the identity of the person, who ran off and escaped by

abandoning the quantity of spirit and liquor. I find no

reason to disbelieve PW2 and PW3, the independent

witnesses. They have no reason to give any false evidence

against the accused. They had clearly witnessed the seizure

of the contraband articles including the vehicle which

carried a pseudo number at the time of detection. The

witnesses also identified the accused as the person who ran

off and escaped by abandoning the huge quantity of liquor

and spirit.

One argument advanced by the appellant is that

there is no proper inventory in this case. Ext.P1 documents

contain the inventory prepared by the Assistant

Commissioner of Excise and this contains the signature of

the Excise Inspector also. The defence is on a statement

inadvertently given by PW6 during trial that the inventory

was prepared by him. PW6 clarified and corrected that the

form of inventory was in fact prepared by him as the list of

the properties to be produced before the Assistant

Commissioner, and the said form was used as inventory by

the Assistant Commissioner of Excise to prepare the

inventory. The inventory in Ext.P1 is signed by the Assistant

Commissioner of Excise, and it is certified duly by the

Judicial First Magistrate having jurisdiction as true and

correct. The photograph of the bundles and the cans was

also certified by the learned Magistrate. The Government

of Kerala has appointed Assistant Commissioners of Excise

as authorised officers for the purpose of functions under

Section 57B of the Act. Only the samples were produced in

court, but the other properties were produced before the

Assistant Commissioner of Excise for necessary action. The

properties were seen and verified by the Assistant

Commissioner, and the only mistake he committed is that

instead of preparing his own inventory, he treated the list of

property given by the Sub Inspector as inventory. However,

it contains the signature and the required elements of an

inventory. The material question is whether the Assistant

Commissioner of Excise had seen and physically verified the  properties produced before him. In this case, I am well

satisfied that the Assistant Commissioner of Excise signed in

the inventory as authorised officer after physically seeing

and verifying the contraband articles including the huge

quantity of liquor packets and the quantity of spirit.

Preparing an inventory is a process wherein, the authorised

officer will have to physically see and verify the properties

and make a certificate to that effect. What is very important

is not simply signing the certificate, but physically verifying

the properties and coming to the satisfaction regarding the

nature of the properties produced before him. Those

elements are satisfied in this case.

I find that the prosecution case stands well

proved beyond any reasonable doubt. Though the allegation

is that the accused was found possessing huge quantity of

arrack along with spirit, the court below convicted the

accused only under Section 58 of the Act for the reason that

what stands proved by scientific report is that the liquid

other than spirit was identified as illicit liquor. Anyway, it is

only a matter of alteration, if at all required. I find no reason

for interference in appeal.

Now the question of sentence. The court below

has imposed a sentence of rigorous imprisonment for four

years each under the two sections and also the minimum

sentence of fine. No interference is possible in the matter of

fine. However, the jail sentence can be modified or reduced,

if so required. The age of the accused was 25 years at the

time of detection. Now he must be aged 37 years. He is at

his prime age with no other conviction, or involvement in

criminal cases. No other crime of similar nature is seen

reported against him. Though four years each is imposed,

the trial court has given the benefit of concurrent sentence.

In the particular circumstances, on a consideration of all the

aspects including the age of the accused then and now, I

feel that rigorous imprisonment for two years each will be

the adequate sentence in this case. If the accused has

already served out the said term and also the default

sentence, he can be released.

In the result, the conviction against the appellant

under Sections 55(a) and 58 of the Act in S.C No.143/2011

of the court below is confirmed, and the appeal is disposed

of accordingly. However, the jail sentence imposed by the

court below will stand reduced to rigorous imprisonment for

two years each under the two sections. The fine sentence

with the default sentence thereon is maintained. If the

accused has already served out the sentence, including

default sentence, he can be released. He will get the benefit

of concurrent sentence as already ordered by the trial

court.