IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 366 of 2003()
1. CHAKKYATH CHANDRAN, S/O.KUMARAN,
... Petitioner
Vs
1. STATE OF KERALA TO BE REPRESENTED
... Respondent
For Petitioner :SRI.P.K.BALAKRISHNAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :09/10/2007
O R D E R
K.R.UDAYABHANU, J
---------------------------------------------
Crl.A.No.366 of 2003
---------------------------------------------
Dated this the 9th day of October, 2007
JUDGMENT
The appellant is the accused in C.C.No.91/99 with respect
to the offence under Section 55(a) of Abkari Act read with Rule 9
of Foreign Liquor Rules and stands sentenced to undergo simple
imprisonment for one year and to pay a fine of Rs.1,00,000/- and
in default, to undergo simple imprisonment for one year.
2. The prosecution case is that on 27.6.1997 at 1.15
p.m. the accused was found travelling in the bus KRC-2000
possessing 10 bottles of 180 ml. each capacity of Indian Made
Foreign Liquor and three bottles of 375 ml. of the same stuff.
3. The evidence adduced in the matter consisted of the
testimony of PWs’ 1 to 5, Exts. P1 to P7 and Exts. P1 to P7 and
MOs’ 1 to 5. The defence examined DW1.
4. The main contention of the counsel for the appellant
is that the sample was not taken from all the bottles of the
contraband seized. It is the contention of the appellant that the
content of the sample should have been representing at least 1.5
litres which is the permissible quantity. What has been taken as
CRA366/2003 Page numbers
sample was 1 bottle containing 180 ml. and 180 ml from a bottle
containing 375 ml., altogether amounting to 360 ml. Hence, the
total quantity taken as sample is 360 ml. The permissible
quantity is 1500 ml. (1.5 litre). The decision of this court in
Krishnankutty vs. State of Kerala (2005(3) KLT 568) was
relied. In the above said case, the sample taken was from only
one bottle of 750 ml. of Indian Made Foreign Liquor whereas the
accused was found in possession of 8 bottles of Indian Made
Foreign Liquor. This court held that it has been established that
only 750 ml. of Indian made Foreign Liquor was found in
possession of the accused and with respect to the rest of the
quantity the evidence is not sufficient in the absence of chemical
analysis report with respect to the rest of the quantity of the
contraband. It was held that there must be proof that the
remaining material object was liquor and prohibited under the
Act and Rules.
5. The Government Pleader has relied on the decision of
the Supreme Court in Vijendrajit Ayodhya Prasad Goel vs.
State of Bombay (AIR 1953 SC 247) wherein contention was
that the sample should have been taken from the entire quantity
CRA366/2003 Page numbers
i.e., 108 bottles and 2 drums of rectified spirit. Only one bottle
out of the articles recovered at the raid was sent for analysis.
The Supreme Court rejected the contention that all the bottles
recovered or samples from the same ought to have been
forwarded for analysis and held that the seized bottles contained
the same stuff.
6. It has to be noted that there would be cases where
bulk quantity of Indian Made Foreign Liquor or illicit liquor in
small containers are seized and in such cases taking samples
from all containers may not be possible. The size of the quantity
of illicit liquor or Indian Made Foreign Liquor would be relevant
with respect to the severeness of the sentence to be imposed as
well. Hence, it appears to me that at least clarification in the
matter is required.
In the circumstances, as contended by the Government
Pleader, I find that the matter requires consideration by the
Division Bench as to whether the representative sample is
sufficient or not. The matter is placed before the Chief Justice.
K.R.UDAYABHANU,
JUDGE
csl