Judgment:
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE18H DAY OF MARCH201427TH PHALGUNA, 1935 CRL.A.No. 1423 of 2003 ( ) --------------------------- SC1212003 of ADDITIONAL SESSIONS COURT (ADHOC-II), KOZHIKODE APPELLANT(S)ACCUSED: ------------------------ C.K.MANI, S/O.KUTTAN, AGED32YEARS, CHAKKALAPURATH HOUSE, CHETTUPUZHAAMSOM, THRISSUR DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S)/COMPLAINANT: ---------------------------- THE SUB INSPECTOR OF POLICE, ELATHUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON1803-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD, J.
-------------------------------------- Crl.Appeal No.1423 of 2003 -------------------------------------- Dated this the 18th day of March, 2014. JUDGMENT
Appeal filed under Section 374 of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Aggrieved by the conviction and sentence awarded by the learned Additional Sessions Judge (Adhoc-II), Kozhikode in S.C.No.121 of 2003, the accused has come up in appeal. The appellant was convicted under Section 55(a) of the Abkari Act (for short, "Act") read with Rule 9 of the Foreign Liquor Rules (for short, "Rules"). Prosecution case, shorn off unnecessary details, is as follows: On 12.03.2000 at about 1.30 a.m. (during night), the accused was found in possession of 50 bottles of Indian Made Foreign Liquor (IMFL), each bottle having a volume of 750 ml. of one particular brand of whisky, six bottles of 375 ml. Each, another brand of whisky and five bottles of 750 ml., yet another brand of whisky. He was found carrying the contraband IMFL in bags. He was sighted at Elathur Panchayat Bus stand by the side of Kannur-Kozhikode National Highway. Prosecution alleged that the liquor possessed by the appellant was imported from the State of Karnataka. It is contended, therefore, that the appellant is guilty of the Crl.Appeal No.1423 of 2003 2 aforementioned offences. After investigation, the charge was laid against the appellant and the case was committed to the Court of Sessions. Learned Additional Sessions Judge at the trial examined six witnesses and marked 11 documents on the side of the prosecution. MOs 1 to 5 are the material objects. There was no defence evidence.
3. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor.
4. PW6 is the detecting officer. At the material time, he was working as the Sub Inspector of Police, Elathur Police Station. On 12.03.2000 night, PW6 along with Police Constables were on night patrol duty. When they reached near Elathur Bus stand and positioned themselves on the opposite side of it, they found the appellant carrying two bags, apparently heavy ones. He had kept another bag on the ground. On seeing suspicion, the Police Officers approached him and questioned. On examination it was found that he was carrying large quantity of IMFL and it was found to be imported from the State of Karnataka, thereby violating Section 55(a) of the Act read with Rule 9 of the Rules. The appellant was arrested. In the presence of witnesses, one bottle each from different categories was taken as sample. It was properly labelled. Cash possessed by the appellant was also recovered. Material documents were prepared immediately after detection. Later, without delay all the material documents and the appellant were produced before the court. Crl.Appeal No.1423 of 2003 3 5. PW6 was subjected to cross-examination. The defence case that the appellant was not involved in such an offence is stoutly denied by PW6. It is brought out in the evidence of PW6 that the contraband articles seized from the possession of the appellant were produced before the court only after 41 days. PW6 initially stated that the contraband articles were produced on the next day of detection, but later he corrected saying that there was some delay in producing the contraband articles in the court. Ext.P1 is the seizure mahazar. It is a document prepared contemporaneous to the detection. Ext.P2 is the site plan. Ext.P4 is the scene mahazar. Ext.P5 is the list of property. It is seen that the contraband articles were produced in the court only on 22.04.2000. It is also seen from Ext.P5 that on the same day the contraband articles were returned to the Station House Officer, Elathur Police Station for safe custody until further orders for want of storage space in the property room of the court. Court seal affixed on Ext.P5 shows that it was reproduced in court on 19.06.2000. Ext.P6 forwarding note submitted by the Station House Officer, Elathur Police Station is dated 08.08.2000. It contains the sample seal. Pursuant to Ext.P6, the property was sent for analysis to the chemical lab and Ext.P7 analysis report was obtained. It shows that the articles sent from court for analysis tested positive for ethyl alcohol. Learned counsel for the appellant contended that the articles remained in the possession of the detecting officer from 12.03.2000 (the date of Crl.Appeal No.1423 of 2003 4 detection of offence) to 22.04.2000 (the date of production of the contraband in court). Learned counsel for the appellant strongly relies on the dictum in Ravi v. State of Kerala (2011 (3) KLT353 to contend that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed by the Chemical Examiner was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Further, it is also observed in that decision that there should be a link evidence to show that it was the same bottles seized from the possession of the accused eventually reached in the Chemical Examiner's Laboratory and that there was no meddling or tampering with the samples while they were in the custody of the authorised officer. When PW6 was examined, he did not speak out anything regarding the custody of the contraband articles in his examination-in-chief. While he was cross-examined, he initially said that he produced the property on the next day of detection itself. However, he immediately corrected it by saying that there could have been more than a month's delay in production. Except for a sentence in his evidence that it was in his custody, PW6 did not assert that he kept the contraband articles in tamper proof condition and the seal was intact on the bottles even when they were produced in the court on 19.06.2000. There is no link evidence adduced in this case to find that the contraband articles were properly kept by the Station House Officer, Elathur to whom it was handed over for safe Crl.Appeal No.1423 of 2003 5 custody. On this reasoning, the appellant is entitled to be acquitted for an offence under Section 55(a) of the Act read with Rule 9 of the Rules. The sentence prescribed for an offence under Section 55(a) of the Act is imprisonment for ten years and payment of a fine of `1,00,000/-. Hence the criminality of the accused should be strictly proved. According to the Public Prosecutor, recovery of large quantity of contraband articles from the possession of the appellant is established by the oral evidence adduced not only by PW6, but also by other witnesses. This is a case wherein PW1, an independent witness, also supported the prosecution case by deposing that he saw the Police recovering 61 bottles of IMFL from the bags possessed by the appellant. In spite of cross-examination, PW1 remained supportive to the prosecution. PW3 conducted a part of investigation. PW4 completed the investigation. Evidence adduced by all these witnesses coupled with documents like Ext.P1 seizure mahazar, Ext.P9 arrest memo and Ext.P11 remand report would show that the appellant was arrested for the said offence as he was possessing 61 bottles of IMFL without any lawful authority. Even if we apply the dictum in Ravi's case (supra), it can only be said that a prosecution under Section 55(a) of the Act cannot succeed in the absence of proof of matters mentioned in the decision. However, this is a case wherein the appellant has violated provisions in Section 13 read with Section 63 of the Act. Therefore, I am of the view that even if the appellant is entitled to be Crl.Appeal No.1423 of 2003 6 acquitted under Section 55(a) read with Rule 9 of the Rules, having found that he was in possession of IMFL excessive than the permitted limit, he should be convicted for violating Section 13 read with Section 63 of the Act. Hence conviction is to be suitably modified. In the result, the appeal is partly allowed. Conviction of the appellant under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules awarded by the Additional Sessions Court (Adhoc-II), Kozhikode in S.C.No.121 of 2003 is hereby set aside. Appellant is convicted for violating Section 13 read with Section 63 of the Abkari Act. Considering the quantity of contraband involved, I find that the appellant is liable to be imposed with the maximum punishment prescribed under Section 63 of the Act. Therefore, the appellant shall pay a fine of `5,000/- (Rupees five thousand only) and in default of payment of fine, he shall undergo simple imprisonment for a period of three months. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. cks