IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1729 of 2003()
1. K.P.BABA, S/O. KANNAKURUPPU,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :31/03/2010
O R D E R
V.K.MOHANAN,J.
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Crl.Appeal No.1729 OF 2003
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Dated this the 31st day of March, 2010
JUDGMENT
Aggrieved by the conviction and sentence imposed
against the sole accused under Sections 55(a) and 58 of
Abkari Act, he preferred this appeal, challenging the
judgment dated 15.09.2003 in S.C.No.107/2001 on the file of
Court of Additional District and Sessions Judge Fast Track
(ADEHOC-1) Kozhikode.
2. The prosecution case is that on 28.05.2000 at about
6.p.m, PW1, the Sub Inspector of Police, Kuttiadi Police
Station, during his patrolling duty, found the accused in
possession of two plastic cans containing 8 litres of illicit
arrack, from a lane, by the side of his house near Nettur Siva
Temple. Accordingly, the accused was intercepted and
arrested and the contraband article were seized and
thereafter the accused as well as the contraband articles
were removed to the police station and Crime No.111/2000
Crl.Appeal No.1729 OF 2003 2
was registered in the Kuttiadi Police Station. After
completing the investigation in the above crime, a report
was filed before the Judicial First Class Magistrate Court,
Nadhapuram under Section 55(a) of the Abkari Act and the
said court committed the case to the Sessions Court, where
SC.No.107/2001 was instituted and it was made over to the
Court of Assistant Sessions Judge , Vadakara and from where
the case was transfered to the trial court for disposal.
Though the police report was only for an offence under
Section 55(a) of the Abkari Act, according to the trial court,
Section 58 of the Abkari Act also revealed through the
materials produced and therefore a charge under Section
55(a) and 58 of the Abkari Act framed against the accused,
on his appearance and after hearing the prosecution as well
as the defence. The accused denied the charge when the
same was read over and explained to him. Thereafter, the
prosecution adduced its evidence consists of oral
testimonies of PWs. 1 to 6 and the documentary evidence
such as Exts. P1 to P10. When the accused questioned
under Section 313 of Cr.P.C, he denied all the incriminating
Crl.Appeal No.1729 OF 2003 3
circumstances and the evidence which came out through
the prosecution evidence. He took the stand of total denial.
From the side of the defence, the accused himself was
examined as DW1 and marked Ext.D1 series of document.
On the basis of the above materials and evidence, the trial
court found that there is no sufficient evidence and
materials to convict the accused under Section 55(a) of the
Abkari Act, but found that he is guilty under Section 58 of
the Abkari Act. Accordingly, the appellant/accused is
sentenced to undergo rigorous imprisonment for two years
and to pay a fine of rupees one lakh and on failure to pay
the fine amount, he is directed to undergo simple
imprisonment for a further period of 9 months. It is the
above conviction and sentence challenged in this appeal.
3. I have heard Sri P.V.Kunhikrishnan, learned counsel
appearing for the appellant as well as the learned Public
Prosecutor.
4. The learned counsel for the appellant raised a
preliminary point with respect to the framing of charge and
the prejudice that caused to the accused due to the grave
Crl.Appeal No.1729 OF 2003 4
mistake committed by the trial court, while framing the
charge. On hearing, the above preliminary point it appears
to me that the said point has a vital and legal importance
in the light of the facts and circumstances involved in the
case which persuaded me to consider the said question
before going in to the other details and merits of the case.
5. The learned counsel submitted that in fact police
had filed their report under Section 173(2) Crl.P.C, on
completing the investigation in the said crime against the
accused alleging offence only under Section 55(a) of the
Abkari Act. Thus when the court framed a formal charge on
09.07.2003, the only accusation therein is that the
accused committed offence punishable under Section 55(a)
of the Abkari Act. The learned counsel submitted that
thereafter no fresh charge or altered charge was read over
and explained to the accused and accused was not given an
opportunity of being heard about any charge other than
what framed and read over and explained to him on
09.07.2003. In support of the above contention, the learned
counsel invited my attention to the endorsement contained
Crl.Appeal No.1729 OF 2003 5
in the charge framed on 09.07.2003, which reads thus:-
“17.08.2003. hd. Charge amended “including” Sec.58
Abkari Act. Sd/-. dated 17.08.2003.” The learned counsel
further invited my attention to the court proceedings and
he pointed out that there is no posting on 17.08.2002 as
seen endorsed in the charge. Thus, according to the learned
counsel, the charge under Section 58 was framed without
hearing the accused or his counsel, and that procedure of
the trial court is in gross violation of Section 216(2) and
Section 464(2)of the Code of Criminal Procedure. It is also
the argument of the learned counsel that the charge under
Section 58 of the Abkari Act is not a minor offence when
compared with Section 55 (a) of the Abkari Act, since in
both the case, the punishments contemplated are one and
same and hence Section 222 of Crl.P.C is not applicable.
6. On the other hand, the learned Public Prosecutor
submitted that whatever may be the Section of offence
incorporated in the charge, the said charge was framed on
the basis of the basic allegations that the accused was
found in possession of 8 liters of arrack in two separate
Crl.Appeal No.1729 OF 2003 6
cans and supported by the materials on record and
therefore no prejudice is caused to the accused.
7. I have carefully considered the arguments advanced
by both the counsel for the appellants and as well as the
learned Public Prosecutor and also carefully perused the
records of the court below.
8. At the out set, it is to be noted that the police has
registered the crime as Crime No.111/2000 in Kuttiadi Police
Station against the accused for the offence punishable,
under Section 55(a) of the Abkari Act and after completing
the investigation, they filed a report under Section 172(2)
Crl.P.C. for the offence under Section 55(a) Abkari Act. It is
also borne out from the report, namely, the charge framed
by the court on 09.07.2003 that the accusation against the
accused/appellant is that he had committed the offence
punishable under Section 55(a) of the Abkari Act. Section 55
(a) of the Abkari Act read as:-
“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; or
Crl.Appeal No.1729 OF 2003 7
(b) xxx
(d) xxx
(e) xxx
(f) xxx
(g) xxx
(h) xxx
(i) xxx
shall be punished.”
From the records, it appears that the said charge was
read over and explained to the accused on 09.07.2003 and
the learned Sessions Judge recorded the pleadings of the
accused on 09.07.2003, whereby the accused denied the
said charge. But as pointed out earlier, in the original charge
dated 09.07.2003, an endorsement is seen to the effect that
“Hd the charge amended and including Section 58 of the
Abkari Act,” which was endorsed on 17.08.2003. But from
the court proceedings, though I have repeatedly gone
through the same I failed to notice any endorsement dated
17.08.2003 in the proceedings sheet. After the proceedings
dated 09.07.2003, in the proceedings sheet of the case, the
next endorsement is dated 18.8.2003 and no proceedings
endorsed on 17.8.2003. Therefore, it appears to be that the
Crl.Appeal No.1729 OF 2003 8
submission made by the learned counsel is correct. If that
be so, I have to hold that the learned Sessions Judge has
compelled the accused to face the trial without properly
framed charge, which will amounts to violation of Section
216(2) of Crl.P.C. If that be so, the same will amount to
miscarriage of justice as contemplated by Section 464(2) of
Crl.P.C.
9. It is also relevant to note that Section 58:-
“For possession of illicit liquor:- whoever, without
lawful authority, has in his possession any quantity
of liquor or of any intoxicating drug, knowing the
same to have been unlawfully imported, transported
or manufactured, or knowing (the duty, tax or rental
payable under this Act) not to have been paid
therefor, (shall be punishable with imprisonment
for a term which may extend to ten years and with
fine which shall not be less than rupees one lakh.)”
Reading of the said Section would show that the
punishment contemplated by Section 58 of the Abkari Act is
same as that of Section 55(a) of the Abkari Act as I
mentioned earlier and if that be so, it cannot be said that
the punishment contemplated by Section 58 of the Abkari
Act is a minor offence, when compared with Section 55(a) of
the same Act and therefore the conviction and sentence
Crl.Appeal No.1729 OF 2003 9
imposed by the trial court cannot be justified with the aid
of Section 222 of Cr.P.C.
10. The learned counsel invited my attention to the
decision of this court as well as the Apex Court respectively
reported in Rajappan V. State of Kerala, (1981 KLT 41)
and Shamnsaheb M. Multtani V. State of Karnataka,
(2001 2 SCC 577) and on application of the principles laid
down in the above decisions, in the facts and circumstances
involved in the present case would show that the
proceedings adopted by the court below and the omission in
framing a proper charge, has adversely affected the
accused, which resulted in miscarriage of justice.
Therefore, the matter requires re-consideration by the trial
court and hence the conviction and sentence and the
judgment of the trial court are not sustainable and the same
is liable to be set aside.
In the result, this Crl.Appeal is disposed of setting aside
the conviction and sentence imposed against the appellant
vide judgment dated 15.9.2003 of the Additional District and
Sessions Judge Fast Track (ADHOC-I), Kozhikode in
Crl.Appeal No.1729 OF 2003 10
S.C.No.107/2001 and remanding the matter to the trial court
for fresh disposal, after framing a proper charge in
accordance with law and in the light of the above discussion.
The accused is allowed to continue on bail and he is directed
to appear before the court below as and when required by
the court below connected with the inquiring and trial of the
case. Trial court is directed to dispose of the matter as early
as possible.
V.K.MOHANAN,JUDGE.
mns