T. Sathyan vs State of Kerala

K. Ramakrishnan, J.—Accused in C.C. No. 712/11 on the file of the Judicial First Class Magistrate Court, No. IV, Kozhikode is the revision petitioner herein.

The accused was charge sheeted by the Sub Inspector of Police, Nadakkavu Police Station in Crime No. 491/11 of that police station alleging offences under Section 15C read with Section 63 of Abkari Act.

The case of the prosecution in nutshell was that on 07.08.2011 at about 5.35 p.m., near Kottaram Road Junction, Kacheri village, the accused was found consuming alcohol without any licence from the side of the public road and thereby, he had committed the above said offence.

When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, P.Ws. 1 to 5 were examined and Exts P1 to P5 and MO 1 and MO 2 were marked on his side. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the circumstances brought against him in the prosecution evidence. He had further stated that he has been falsely implicated in the case at the instigation of his brother. In order to prove his case, one witness was examined as DW 1.

After considering the evidence on record, the trial court found the revision petitioner guilty under Section 15C read with Section 63 of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for two months more. Aggrieved by the same, the revision petitioner filed Crl. Appeal. No. 516/13 before the Sessions Court, Kozhikode which was made over to First Additional Sessions Court, Kozhikode for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction and the fine imposed, but, reduced the substantive sentence of six months simple imprisonment to three months simple imprisonment and also default sentence to one month. Dissatisfied with the same, the present revision has been filed by the revision petitioner - accused before the court below.

Since State is the only respondent, this court felt that the revision can be admitted and heard and disposed of today itself. So, the revision is admitted and heard both sides and disposed of today itself.

The Counsel for the revision petitioner argued that, there is no evidence to show that the article that has been said to have been consumed by the revision petitioner was liquor so as to attract the offence under Section 15C read with Section 63 of the Abkari Act. No chemical analysis report was obtained and the Doctor''s evidence will go to show that even consuming Homoeopathy medicine will result in the smell of alcohol at the time of examination. Further, he had also argued that the evidence of DW 1 has not been properly appreciated and the offence has not been made out as well.

On the other hand, the learned Public Prosecutor submitted that the court below had relied on the decision of this court and rightly come to the conclusion that experience officers have satisfied that the article seized was liquor as defined under the Act and rightly convicted him for the offence alleged.

The case of the prosecution as emerged from the prosecution witnesses was that on 07.08.2011 at about 5.35 p.m., while P.Ws. 1 and 2 were doing patrol duty, they saw the revision petitioner consuming liquor from the side of the road and immediately, they arrested the revision petitioner and examined the contents of MO 1 bottle and the glass and satisfied that it was liquor and he was produced before P.W. 4 who issued Ext. P5 Drunkenness certificate in which it was mentioned that, he was having the smell of alcohol, but, he was not under the influence of alcohol. On that basis, P.W. 5 registered Ext. P3 First Information Report against the revision petitioner under Section 15C of Abkari Act alone and investigation was conducted by himself and he prepared Ext. P4 Scene Mahazar, questioned witnesses and submitted the final report. Later, Section 63 of Abkari Act was also added.

P.Ws. 1 and 2 have categorically stated that while they were doing patrol duty, they found the revision petitioner consuming liquor from the side of the Kottaram road and they examined the contents of MO 1 bottle and satisfied that it was liquor and consuming liquor from the side of the public road is prohibited under Section 15C of the Abkari Act and so, P.W. 1 arrested the revision petitioner, prepared Ext. P1 Arrest memo in the presence of P.W. 3 and seized MOS 1 and 2 as per Ext. P2 seizure mahazar. Thereafter, he produced him before P.W. 4-Doctor who examined him and issued Ext. P5 Drunkenness certificate which shows that he is having the smell of alcohol. Though P.Ws. 1 and 2 were cross examined at length, nothing was brought out to discredit their evidence on this aspect. Though DW 1 was examined on the side of the revision petitioner to prove that, the revision petitioner was taken from his house, he had not made any complaint against the same. Further, he has not signed the arrest memo, if he was really arrested from the house. So, the court below was perfectly justified in not relying the evidence of DW 1 to disprove the case of the prosecution.

Further, Section 15C of the Act reads as follows:

"Consumption of liquor in public places:-"No person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by the Commissioner."

Explanation 1:-For the purpose of this section, "public place" means any street, Court, Police Station or other public office or any club or any place of public amusement or resort or on board any passenger boat or vessel or any public passenger or goods vehicle, or a dining or refreshment room in a restaurant, hotel, rest-house, travellers'' bungalow or tourists'' bungalow where different individuals or groups of persons consume food, but shall not include any private residential room.

Explanation II:- For the purpose of Explanation 1, "public passenger or goods vehicle" means a vehicle used for carrying passengers or goods for hire or reward, with or without a contract, express or implied, for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and includes a private vehicle in any public place."

Further, the Liquor has been defined under Section 3(10) of the Act as "Liquor" includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.

Further, it will be seen from order of the court below that the presiding officer has examined MO 1 bottle and found that, it was having a label showing that it was brandy which is a liquor defined under Section 3(10) of the Act. Further, no evidence has been adduced on the side of the revision petitioner to show that he had consumed any homoeopathy medicine at the time when he was examined by the Doctor as well. Further, P.Ws. 1 and 2 have stated that, on smelling the contents of MO 1 bottle, they were convinced that, it was liquor and it was having the smell of alcohol.

Further, in the decision reported in Soman Vs. State of Kerala, , this court has after considering all the decisions reported in Sri Chand Batra Vs. State of U.P., observed that, it is not always necessary to obtain chemical analysis report to form an opinion as to whether the article found is liquor or not. If the officials are having experience, then, they are competent to find out as to whether the article seized is liquor or not by examining the contents of the bottle. No question was put to P.Ws. 1 and 2 regarding their competency to ascertain as to whether the article seized was liquor or not. Further, the revision petitioner also had no case that the article seized is not liquor when they were cross examined as well. His case was that, he was falsely implicated which has not been established by him. So, under the circumstances, courts below were perfectly justified in relying on the evidence of P.Ws. 1 and 2 and coming to the conclusion that prosecution has proved beyond reasonable doubt that the revision petitioner had found consuming alcohol from the public place without any licence and thereby, he had committed the offence punishable under Section 15C of the Act which is punishable under Section 63 of the Abkari Act and rightly convicted him for the said offence and the concurrent findings of the court below on this aspect do not call for any interference.

As regards the sentence is concerned, the learned magistrate had sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for two months more. The appellate court had though confirmed the sentence of fine, reduced the substantive sentence of imprisonment to three months from six months and default sentence to one month from two months.

Section 63 of the Act says as follows:

For offences not otherwise provided for:- Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such willful act or omission with fine [which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both;]

So, it is not necessary always to impose imprisonment as part of the sentence. So, considering the nature of offence and also the article seized, this court feels that there is no necessity to impose compulsory imprisonment as part of the sentence. So, this court feels that the fine imposed alone will be sufficient and that will meet the ends of justice. So, the substantive sentence of six months simple imprisonment which was reduced to three months simple imprisonment by the court below is set aside and the sentence is confined to fine of Rs. 5,000/- with default sentence of one month as modified by the appellate court is confirmed. So, the revision petitioner is sentenced to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for one month. If any amount is deposited by the revision petitioner towards fine, then, that is directed to be given credit for this amount.

With the above modification of the sentence imposed, the revision is allowed in part. One month time is granted to the revision petitioner to remit the fine amount after deducting any portion of fine if any already deposited as directed by this court or by the appellate court. Till then, the execution of sentence is directed to be kept in abeyance.

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