IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 335 of 2003()
1. GANGADHARAN, S/O. KRISHNAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/03/2010
O R D E R
P.Q. BARKATH ALI, J.
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Crl.A. No. 335 of 2003 A
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Dated this the 26th day of March, 2010
JUDGMENT
Challenge in this appeal by the accused is to the
judgment of the Addl. District and Sessions Judge, Fast
Track (Adhoc-I), Kozhikode dated January 27, 2003 in S.C.
No. 260 of 1999, convicting him under section 55(a) of the
Abkari Act and sentencing him to undergo rigorous
imprisonment for a period of two years and to pay fine of
Rs.1 lakh, in default to undergo simple imprisonment for a
further period of six months.
2. The case of the prosecution, as shaped in evidence
before the trial court, in brief is this:-
On July 2, 1998 at about 5.30 p.m. while PW1, the
then Sub Inspector of Police, Atholi along with PW.2 a
Constable attached to that Police Station were on patrol
duty at Ulliyeri Bus Stand, the accused was found holding a
plastic cover and on search it was found to contain 7
bottles, each having a quantity of 375 ml. of Indian Made
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Foreign Liquor. The articles were seized in the presence of
two independent witnesses, PWs.3 and 4. The accused was
arrested and produced before the committal court. The case
was investigated by PW6, the then Head Constable of that
station. After completing the investigation, the charge was
laid before the committal court by PW1 alleging offences
punishable under Sec. 55(a) and 55(g) of the Abkari Act.
3.When the accused appeared before the committal
court, copies of documents relied on by the prosecution
were furnished to him. As the offence punishable under
section 55(a) and 58 of the Abkari Act are exclusively
triable by a Court of Sessions, the case was committed to
the Sessions Court, Kozhikode from where it was made over
to the trial court for trial and disposal.
4. The accused, on appearance before the trial court,
pleaded not guilty to the charge under sections 55(a) and
58 of the Abkari Act. On the side of the prosecution PWs.1
to 6 were examined and Exts.P1 to P8 and MOI series and
MOII were marked. When he was questioned under section
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313 Cr.P.C. by the trial court, he denied the incriminating
circumstances. No evidence was adduced on the side of the
defence. The learned Magistrate, on an appreciation of the
evidence, found the accused guilty under section 55(a) of
the Abkari Act, convicted him there under and sentenced
him as aforesaid. He was acquitted of the charge under
section 58 of the Police Act. The accused has now come up
in appeal challenging his conviction and sentence.
5. Heard the learned counsel appearing for the
appellant and the learned Public Prosecutor.
6. The following points arise for consideration :-
1) Whether the conviction of the
appellant/accused by the trial court under
section 55(a) of the Abkari Act can be
sustained?
2) Whether the sentence imposed by the trial
court is excessive or unduly harsh?
7. The case of the prosecution was that on July, 2,
1998 at about 5.30 p.m. the accused was found to be in
possession of 7 bottles of Indian Made Foreign Liquor, each
containing 375 ml. near the Bus Stand at Ulliyeri and that
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thereby committed the offence punishable under section 55
(a) of the Abkari Act. PWs.1 to 6 were examined on the side
of the prosecution before the lower court. PW1 is the then
S.I. of Police, Atholi Police Station who detected the
offence. PW2 is the Constable who accompanied him. They
gave a consistent version regarding the recovery of MOI
series, the bottles containing I.M.F.L. and MOII the bag.
Nothing was brought out in their cross-examination to show
that they have any enmity towards the accused. The counsel
for the appellant/accused argued that as the two
independent witnesses to the seizure mahazar turned
hostile and did not support the prosecution and PWs.1 and
2 being the official witnesses, their evidence should not be
believed. I am not inclined to agree. It is settled law that
evidence of official witness can be believed without any
corroboration, if the same found to be reliable and
trustworthy. The trial court found their evidence reliable
and chosen to believe them. I have gone through their
evidence. I find no reason to come to a different conclusion.
Crl.A. 335/2003 5
Therefore, accepting their evidence I hold that the
prosecution has succeeded in proving the recovery of MOI
series and MOII from the accused.
8. The learned counsel for appellant/accused relying
on a decision of this Court reported in Ali V. State of Kerala
(2001(2) KLT 389) argued that though PW1 testified that
he prepared and sent arrest memo before arresting the
accused, no such arrest memo is seen in the records and
also there is delay in forwarding the seized articles to court,
which casts serious doubt regarding the version of PWs.1
and 2 about the arrest of the accused and alleged seizure of
MOI series and MOII from the accused. I am unable to
agree. Mere absence of arrest memo and delay in
forwarding the seized articles to court is not a ground to
discard the entire case of the prosecution. I have chosen to
believe the evidence of PWs.1 and 2 regarding the arrest of
the accused and seizure of MOI series and MOII from the
accused. Further all the bottles seized were sealed from the
spot and PWs.1, 2 and 3 have signed on the label. Those
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seals were found intact. In Ext.P5 Chemical Analyst has
reported that the seals were intact and tallied with sample
seals. There is nothing to show that the samples were
tampered with. Further the report of the Chemical Analyst
shows that MOI series contains I.M.F.L. Therefore,
accepting the evidence of PWs.1 and 2, I hold that the
accused was found in possession of MOI series bottles
containing I.M.F.L. of 1.425 litres, as alleged by the
prosecution.
9. Next question for consideration is whether a
charge under section 55(a) will lie against the accused. The
counsel for the appellant argued that during 1998
permissible quantity of I.M.F.L. a person can possess was
4.5 litres. as provided under the Order of the Government
S.R.O.No.225/98 dated March 5, 1998 and that in this case
the accused was found in possession of only 7 bottles of 375
ml. each totalling to 1.425 litres of Indian Made Foreign
Liquor and therefore no charge under section 55(a) of the
Abkari Act will lie against the accused. The learned Public
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Prosecutor would say that the seized bottles do not bear the
security labels of Beverages Corporation as required under
section 26 of the Abkari Act and that therefore charge
under section 55(a) of the Abkari Act will lie against the
accused.
10. There is force in the contention of the appellant
that as the accused was found in possession of I.M.F.L.
below the permissible quantity, no charge under section 55
(a) of the Abkari Act will lie against the accused. It is seen
seen from S.R.O. No.225/98 dated March 5, 1998 that a
person can possess for his own use I.M.F.L . up to 4.5 litres.
The prosecution has failed to show that the accused has
kept those contraband articles for sale. Therefore, I am of
the view that a charge under section 55(a) will not lie
against accused. That being so, the conviction of the
accused by the trial court under section 55(a) of the Abkari
Act cannot be sustained.
11. There is another aspect in this case. The seized
bottles, MOI series, do not contain the security label of the
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Beverages Corporation. Therefore, the accused is guilty of
violation of Rule 26 of the Foreign Liquor Rules, which is
punishable under section 63 of the Abkari Act. Therefore,
while acquitting the accused of the charge under section 55
(a) of the Abkari Act, I convict the accused for violation of
rule 26 of the Foreign Liquor Rules, which is punishable
under section 63 of the Abkari Act.
12. Thus, the appellant/accused is acquitted of the
charge under section 55(a) of the Abkari Act, instead he is
convicted under section 63 of the Abkari Act for violation of
rule 26 of the Foreign Liquor Rules. He is sentenced to pay
a fine of Rs.1,000/-, in default to undergo simple
imprisonment for three months under section 63 of the
Abkari Act. One month’s time is granted for payment of the
fine. His bail bonds are cancelled.
P.Q. BARKATH
ALI, JUDGE.
mn
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P.Q. BARKATH ALI, J.
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Crl.A. No. 335 of 2003 A
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JUDGMENT
26th day of March, 2010