IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 419 of 2003(C)
1. KANTHAPPA POOJARY, S/O. DHUMA POOJARI,
... Petitioner
Vs
1. EXCISE INSEPCTOR,
... Respondent
2. STATE, REP. BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :26/10/2007
O R D E R
K. THANKAPPAN, J.
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CRL.A.NO.419 OF 2003
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Dated this the 26th day of October, 2007.
JUDGMENT
The appellant faced trial for an offence punishable under
Section 55(a) read with Section 55(1) of the Abkari Act on a
complaint filed by the Excise Inspector, Kasaragod Excise range
alleging that the appellant was found in possession of 33 liters of
arrack on 1.10.1998 on the western side of the railway track at
Beeranthbial at Kasaragod District against the provisions of the Act
and the Rules made thereunder. To prove the charge against the
appellant, prosecution examined three witnesses and relied on
Exts.P1 to P6. MOs 1 and 2 were also produced. While
questioning the appellant under Section 313 of the Code, he denied
all the incriminating circumstances proved against him by the
prosecution and had stated further that the case was foisted
against him by the Excise Officials on the instigation of one
Krishnapoojari, who is residing near the place of the incident. On
the side of the appellant, DW1 was also examined. No
documentary evidence has been proved. The trial court relying on
the evidence of Pws 1 and 3, the Preventive Officer and the Excise
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Inspector, found the appellant guilty of the offence charged and he
was convicted thereunder and sentenced to undergo R.I for one
year and to pay a fine of Rs. One lakh with default sentence of
payment of fine, to undergo R.I for a further period of three
months. The judgment of the trial court is challenged in this
appeal.
2. The counsel appearing for the appellant raised various
grounds while challenging the judgment of the trial court. Firstly it
is submitted that the evidence of Pws 1 and 3 ought not have been
accepted by the trial court as PW2, the only independent witness
examined in the case, turned hostile to the prosecution. Further,
the counsel submits that PW3, the Excise Inspector, while
detecting the offence had violated the provisions of the Abkari Act
and the Excise Manual with regard to seizure of the contraband,
taking of the sample, labeling and sealing of the same. Further, the
counsel submits that as per the principles laid down by this Court in
the judgments reported in Surendran v. Excise Inspector (2004
(1) KLT 404) and Sudephan @ Aniyan v. State of Kerala (2005 (2)
KLD (Crl) 631), the finding of the trial court that the appellant
committed an offence punishable under Section 55(a) of the Abkari
CRL.A.NO.419/2003 .
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Act is not legally tenable. Lastly, the counsel submits that
punishment awarded against the appellant is excessive and this
Court may take a lenient view against the appellant, if the
evidence of prosecution is accepted.
3. The trial court considered the evidence of Pws 1 and 3, out
of whom PW3 was the Excise Inspector, who detected and
investigated the crime against the appellant. The evidence of
PW3 would show that on the day of the incident namely on
1.10.1998 when himself and other excise officials were on excise
duty, they noted that the appellant was puring a liquid from a
cannas with a green mug and when the excise party approached
the appellant, they noted that the appellant was carrying MO1
cannas which contained about 33 liters of arrack and he was
pouring arrack in MO2 mug near the railway line. Further
evidence of this witness would show that the appellant was
questioned and arrested at the spot and on preparing Ext.P1
seizure mahazar, MO1 cannas was seized and two sample bottles
of arrack were taken for analysis and thereafter, the samples and
the residue were properly sealed and labeled and got signed by
two independent witnesses. Thereafter, a case was registered
CRL.A.NO.419/2003 .
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against the appellant and as per Ext.P4 property list , the entire
contraband article and the samples were produced before the
court on 1.10.1998. Further evidence of this witness would show
that, as per Ext.P6 Chemical Analysis Report, it was reported that
the sample analysed contained 29.36% of ethyl alcohol by volume
and the sample analysed was arrack. The evidence of this
witness is also seen supported by PW1, the Preventive Officer, who
accompanied PW3 along with the other Excise Officials. Though,
these two witnesses were cross examined, their evidence has
not been shaken and suggestions made to these witnesses, that
the case was foisted against the appellant on the instigation of one
Krishnapoojari and due to enmity kept by the Excise Officials
towards the appellant, were denied. In the above circumstances,
the trial court believed the evidence of Pws 1 and 3. PW2 though
was examined to support the prosecution case, he turned hostile
to the prosecution. However, this witness had admitted his
signature in Ext.P1 mahazar, Ext.P2 arrest memo and other
contemporary documents prepared by PW3. In the above
circumstances, contention of the counsel appearing for the appellant
that evidence of Pws 1 and 3 should not have been accepted by
the court is not tenable. The trial court correctly appreciated the
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evidence of these witnesses and the documentary evidence
adduced by the prosecution. Further evidence of PW3 would show
that all the material objects were produced before the court for
verification and as per Ext.P4 property list, the residue and the
samples taken for analysis were also produced before the court on
the same day of the incident. If so, there is no violation of any of
the provisions of the Abkari Act or the Excise Manual. Apart from
this, evidence of PW3 would show that the sample and the
residue were duly labeled and sealed though there is some
confusion with regard to nature of the seal put by PW3 appears in
the evidence of PW1. This is not enough to have any doubt
regarding evidence of these witnesses. The next question to be
considered is whether the trial court is justified in finding that the
appellant had committed an offence under Section 55(a) read with
Section 55(i) of the Abkari Act. As per the principles laid down by
this Court in Sudephan and Surendrans’ cases (cited supra), to
attract an offence under Section 55(a) of the Abkari Act, the
prosecution should prove that possession of contraband article is in
connection with any import, transport or transit of the same.
Though the prosecution has alleged that the appellant was found
in possession of MO1 can with 33 liters of arrack, there is no
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evidence to show that the said possession was in connection with
any import, transport or transit of the same. The only allegation
against the appellant by the prosecution was that he kept the
same for sale. But, there is no evidence to show that the
appellant had sold the prohibited liquor to anybody. In the
above circumstances, finding of the trial court that the appellant
had committed an offence under Section 55(a) read with Section
55(i) of the Abkari Act is not sustainable in law and hence,
conviction and sentence awarded against the appellant under
that section are hereby set aside. Accordingly, the appellant is
acquitted of the offence punishable under Section 55 (a) read with
Section 55(i) of the Abkari Act.
4. The next question to be considered is that as the trial court
had accepted the evidence of Pws 1 and 3 to prove that the
appellant was found in possession of 33 liters of arrack on
1.10.1998, what would be the offence be charged against the
appellant? Arrack is a prohibited liquor in the State as per Section 8
of the Abkari Act. Arrack is also defined under Section 3(6A) of the
Abkari Act, which reads as follows:
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“Arrack” means any potable liquor other than Toddy,
Beer, Spirits of Wine, Wine, Indian made spirit,
foreign liquor and any medicinal preparation
containing alcohol manufactured according to a
formula prescribed in a pharmacopoeia approved by
the Government of India or the Government of Kerala,
or manufactured according to a formula approved
by the Government of Kerala in respect of patent and
proprietary preparations or approved as a bonafide
medicinal preparation by the Expert Committee
appointed under Section 68 A of the Act.
As per Section 8 of the Abkari Act, no person shall manufacture,
import export, transport or transit [without permit transit]
possess, store, distribute, bottle or sell arrack in any form. So,
there is a clear prohibition of possession of arrack in any form and
such possession, sale, distribution, bottling, storing, exporting,
importing or even manufacturing of such arrack is punishable under
Section 8(2) of the Act. Hence, the appellant is fond guilty under
Section 8(1) read with 8(2) of the Abkari Act. The next question to
be considered is with regard to the punishment be awarded
against the appellant. The trial court had found the appellant
guilty under Section 55(a) of the Abkari Act and sentenced him to
undergo R.I for one year and to pay a fine of Rs.One lakh. No
special reason has been stated by the trial court for imposing such
a penalty against the appellant. The State Government wants to
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have complete prohibition of manufacturing, selling etc of arrack
with a view to free the State from untoward incidents like liquor
tragedy etc. In the above circumstances, if any person is found in
possession, selling, manufacturing, bottling or storing or arrack
shall be properly punished. However, as the incident took place
about nine years back and the State had not filed any appeal for
enhancement of the punishment, this Court is of the view that R.I for
one year imposed by the trial court and the fine of Rs.One lakh will
be the sufficient punishment for the appellant.
Accordingly, the appellant is found guilty under Section 8(1)
read with Section 8 (2) of the Abkari Act and he is convicted
thereunder and sentenced to undergo R.I for one year and a fine
of Rs. One lakh with default sentence of payment of fine, to
undergo R.I for a further period of three months. The appellant
is entitled for the benefit of Section 428 of the Code of Criminal
Procedure. Except the above alteration of conviction, in all other
respects, the appeal stands dismissed. The bail bond executed by
the appellant shall stand cancelled.
K. THANKAPPAN, JUDGE.
cl CRL.A.NO.419/2003 . 9 K. THANKAPPAN, J. CRL.A.NO.419 OF 2003 JUDGMENT 26th October, 2007. CRL.A.NO.419/2003 . 10