IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 845 of 2003()
1. KULATHIL THOTTATHIL HAREESH KUMAR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.SARVOTHAMAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :06/01/2011
O R D E R
P.Q.BARKATH ALI, J.
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Crl.A.Nos. 845 and 1020 of 2003
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Dated this the 6th day of January, 2011
JUDGMENT
Appellants in Crl.No.A 1020 of 2003 are accused
Nos.1 and 2 and appellant in Crl.A.No.845 of 2003 is
accused No.3 in S.C. No.137 of 1999 on the file of the Addl.
Sessions Court, Adhoc -II, Thalassery.
2. The appellants challenge the judgment of the
learned Sessions Judge dated May 20, 2003 convicting
them under section 55(a) of the Abkari Act and sentencing
them to undergo rigorous imprisonment for two years each
and to pay fine of Rs.1 lakh each, in default to undergo
rigorous imprisonment for six months each.
3. The case of the prosecution as unfolded in evidence
before the lower court, in brief, is this:- PW1 was the then
Sub Inspector of Police, Edakkad Police Station. On
February 2, 1998 he along with police party, including PW3
Head Constable attached to the Edakkad Police Station,
Crl.A.845/2003 & con. case 2
was on patrol duty. At about 6.30 p.m. when they reached
at Muzhappilangad, near Koodakkadavu Railway Gate, they
found an auto-rickshaw bearing registration No.KL-12/4249
coming from Thalssery side. They stopped the auto-
rickshaw and on search, they found three cardboard boxes
near the seat containing Indian Made Foreign Liquor in
bottles and in the back seat of the auto-rickshaw 12
polythene covers containing Indian Made Foreign Liquor
bottles. On examination, it was found 42 bottles of Whisky
each having capacity of 750 ml., 96 bottles of Whisky each
having capacity of 180 ml., 36 bottles of Rum each having
capacity of 375 ml., 48 bottles of Rum each having capacity
of 180 ml. in the auto-rickshaw. Accused No.3
Hareeshkumar was driving the auto-rickshaw and accused
Nos.1 and 2 were found in the passenger seat. PW1
arrested accused persons and seized the contraband
articles. Ext.P1 seizure mahazar was prepared in the
presence of PW2 independent witness. Ext.P3 is the F.I.R.
which is registered against the accused persons. PW4
Crl.A.845/2003 & con. case 3
conducted the investigation, questioned the witnesses and
after completing the investigation laid the charge before the
committal court, Additional Chief Judicial Magistrate Court,
Thalassery.
4. When the accused persons appeared before the
committal court, copies of documents relied on by the
prosecution were furnished to them. As the offence under
section 55(a) of the Abkari Act is exclusively triable by a
Court of Sessions, the case was committed to the Sessions
Court, Thalassery from where it was made over to the
Assistant Sessions Court, Thalassery and later to the trial
court for trial and disposal.
5. The accused on appearance before the trial court
pleaded not guilty to the charge under section 55(a) of the
Abkari Act . PWs.1 to 4 were examined and Exts.P1 to P7
and MOs.I to VI series were marked on the side of the
prosecution. When questioned under section 313 Cr.P.C.,
the accused persons denied having committed any offence.
No defence evidence was adduced. The trial court on an
Crl.A.845/2003 & con. case 4
appreciation of the evidence found the accused persons
guilty of the offence punishable under section 55(a) of the
Abkari Act , convicted them thereunder and sentenced them
as aforesaid. Crl.A. No.1020 of 2003 is filed by accused
Nos.1 and 2 and Crl.A.No.845 of 2003 is filed by accused
No.3 challenging their conviction and sentence.
6. Counsel for the appellant in Crl.A.No.845 of 2003
argued that appellant who is the 3rd accused was only a
driver of the auto-rickshaw and he was not aware of the
contraband articles transported in the auto-rickshaw, as the
same belongs to accused Nos.1 and 2 and that therefore,
the lower court went wrong in finding that the appellant/3rd
accused has committed an offence punishable under section
55(a) of the Abkari Act. Learned counsel for accused Nos.1
and 2 would argue that even if the seizure of the
contraband articles from accused 1 and 2 is proved, an
offence under section 55(a) of the Abkari Act will not lie and
at the most they can only be found guilty of having violated
relevant Foreign Liquor Rules for having transported Indian
Crl.A.845/2003 & con. case 5
Made Foreign Liquor in excess of the permissible quantity,
which is punishable under section 63 of the Act.
7. The following points arise for consideration:-
1) Whether the prosecution has proved beyond
doubt the seizure of MO1 to MOVI series
from the accused persons?
2) Whether the 3rd accused has committed any
offence?
3) Whether the conviction of accused 1 and 2
under section 55(a) of the Abkari Act can be
sustained?
4) What are the offences committed by the
appellants?
5) Whether the sentence imposed is excessive
or unduly harsh?
8. I shall first consider whether the search and
seizure of MOs.I to VI series containing Indian Made
Foreign Liquor from accused persons are proved. PW1 the
Detecting Officer as well as PW3 Head Constable, who
accompanied PW1, testified in a convincing manner before
the lower court regarding the seizure of the contraband
articles from accused 1 and 2. I have gone through the
Crl.A.845/2003 & con. case 6
evidence of PWs.1 and 3. Nothing was brought out in cross
examination to discredit their evidence. No serious
discrepancies were pointed out in their evidence to
disbelieve them. They have no previous acquaintance or
enmity towards accused1 to 3 to foist a false case.
9. Learned counsel for the appellants argued that as
PW2, an independent witness, turned hostile, the evidence
of official witness PWs.1 and 3 could not be believed
without any corroboration. There is no substance in the
above contention. There is no rule of law that the evidence
of official witness cannot be believed without any
corroboration. It is settled law that evidence of official
witnesses can be accepted if it is found reliable. In the
present case the evidence of PWs.1 and 3 is found to be
reliable and trustworthy. Therefore, the lower court is
perfectly justified in accepting evidence of PWs.1 and 3 and
coming to the conclusion that 222 bottles of Indian Made
Foreign Liquor were found in possession of accused 1 and
2.
Crl.A.845/2003 & con. case 7
10. As regards accused No.3 is concerned, he was the
driver of the auto-rickshaw in which the contraband articles
were transported. Accused Nos.1 and 3 have no case that
even when they boarded the auto-rickshaw the said
contraband articles were kept in the auto-rickshaw. Further
the driver of the auto-rickshaw may not be in a position to
know what are the articles a passenger will be carrying in
the auto-rickshaw. Therefore, I give the benefit of doubt to
3rd accused i.e., appellant in Crl.A. No.8945/2003 and acquit
him of the charge under section 55(a) of the Abkari Act.
11. The next question for consideration is whether the
conviction of accused Nos.1 and 2 under section 55(a) of
the Abkari Act by the lower can be sustained.
12. Section 55(a) of the Abkari Act reads thus:-
“55. For illegal import, etc. — Whoever
in contravention of this Act or of any rule or
order made under this Act
(a) imports, exports, transports, transits or
possesses liquor or any intoxicating drug.”
Crl.A.845/2003 & con. case 8
Therefore, the question would be whether mere possession
of Indian Made Foreign Liquor in excess of the maximum
quantity prescribed under the notification existed at that
time would attract an offence under section 55(a) of the
Abkari Act. The permissible quantity of Indian Made
Foreign Liquor that can be carried by a person is 1.5 litres
as per S.R.O. No.127/99 issued under G.O.(P) No.22/99/TD
dated 5-2-1999.
13. A similar question arise for consideration before a
Division Bench of this Court in Mohanan V. State of Kerala
(2007(1) KLT 845) wherein it has been held that section 55
(a) of the Abkaqri Act deals with only illegal import, export
or transport etc. and is applicable only when persons
illegally imports or transport liquor or in possession of
liquor while illegally importing it. In the above decision the
Division Bench followed the decision in Surendran V.
Excise Inspector (2004(1) KLT 404). A reference was also
made about the decisions in Mariamma & Anr. V. State of
Kerala & Ors. (1998(1) KLT 286) and Purushan V. State of
Crl.A.845/2003 & con. case 9
Kerala (2002(2) KLT 661).
14. In the light of the principles laid down in the
above decisions, it can only be said that accused Nos.1 and
2 were found to be in possession of 222 bottles of Indian
Made Foreign Liquor in violation of sections 10 and 13 of
the Abkari Act and the above mentioned notification issued
by the government, which is punishable under section 63 of
the Abkari Act. Therefore the finding of the trial court that
accused Nos.1 and 2 have committed an offence punishable
under section 55(a) of the Abkari Act is not legally
sustainable. Hence, conviction of accused Nos. 1 and 2
under section 55(a) of the Abkari Act is set aside and they
are found guilty under section 63 of the Abkari Act for
violation of section 10 and 13 of the Abkari Act.
15. The next question to be considered is what is the
punishment that can be imposed on accused Nos.1 and 2.
Maximum punishment that can be imposed under section
63 of the Abkari Act is a fine of Rs.5,000/- or imprisonment
which may extent to two years. Taking into consideration
Crl.A.845/2003 & con. case 10
the above aspect and on the fact that the incident occurred
on February 2, 1998 i.e., about 12 years ago and as no
previous conviction is pleaded or proved against accused 1
and 2, I feel that a sentence of imprisonment till the rising
of court and to pay a fine of Rs.5,000/- each, in default to
undergo simple imprisonment for one month’s each would
meet the ends of justice.
16. In the result, Crl.A.No.845 of 2003 is allowed.
Appellant/accused No.3 is found not guilty of the offence
alleged against him. Conviction rendered and sentence
imposed against him by the trial court are set aside and he
is acquitted under section 386 of the Cr.P.C. His bail bonds
are cancelled.
17. Crl.A. No.1020 of 2003 is allowed in part.
Conviction of the appellants/accused 1 and 2 under section
55(a) of the Abkari Act rendered by the trial court and
sentence imposed on them are set aside and they are
convicted under section 63 of the Abkari Act and sentenced
to undergo imprisonment till the rising of court and to pay a
Crl.A.845/2003 & con. case 11
fine of Rs.5,000/- each, in default to undergo simple
imprisonment for one month each. Their bail bonds are
cancelled. One month’s time is granted for payment of fine.
They shall surrender before the lower court on or
before January 31, 2011 to suffer the sentence.
P.Q.BARKATHALI, JUDGE
mn
Crl.A.845/2003 & con. case 12
P.Q.BARKATH ALI, J.
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Crl.A.Nos. 845 and 1020 of 2003
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JUDGMENT
6-1-2011