IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1767 of 2003()
1. MUHAMMED HANEEF S/O. ALIKUNHI,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :27/09/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 1767 of 2003
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Dated this the 27th day of September, 2007
JUDGMENT
Appellant was found guilty under section 55(a) of the Abkari Act by
the trial court. The case of the prosecution is that the appellant and three
other accused were found transporting 22 cases of Original Coconut A.C.
Special Fenny containing 1054 quarter bottles in a Maruthi Van bearing
registration No.CKR 2056. Since other accused were absconding, the case
against the appellant was split up and committed to the trial court.
2. The learned counsel for the appellant challenges the judgment
under appeal on various grounds. The main ground urged by the learned
counsel is that the trial court has committed serious error in finding that the
appellant had committed an offence punishable under section 55(a) of the
Abkari Act, as this Court had categorically held in Surendran V. State of
Kerala (2004(1) KLT 404 and Sudhepan @ Aniyan V. State of Kerala (2005
(2) KLT (Cri) 631) to attract an offence under section 55(a) of the Abkari
Act, the prosecution should allege prove that the possession of liquor was
in connection with any export, import, transport or transit the same. The
second ground urged by the learned counsel is that PW3 had not complied
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with the provisions of the Abkari Act and the Kerala Excise Manual while
detecting the offence and taking the sample. The other ground is that the
sample and residue were not kept in the proper custody till they were
produced before the court.
3. The prosecution case against the appellant and other accused as
per the evidence of Pws.3 and 4 is that on getting information about
transportation of Indian Made Foreign Liquor, they proceeded to the spot
and started checking the vehicles. During that time a Maruthi Van bearing
registration No. CKH 2056 came and on stopping the vehicle, four persons
get down and attempted to escape. It is also stated that they were caught
hold of and on inspection of the vehicle 1056 quarter bottles of Original
Coconut AC Special Fenny in 22 cases were found. The further case of the
prosecution is that on preparing Ext.P1 seizure mahazar, the contraband
articles were seized, out of which two bottles were taken as sample for
analysis. According to the prosecution, all the accused were arrested at the
spot and they were produced before the police station along with the
contraband articles. The further case is that the sample got analyzed and as
per Ext.P4 chemical report, the sample contained 39.872% of ethyle
alcohol. To prove the case against the appellant the prosecution examined
Pws.3 and 4. Though PWs.1 and 2 were examined as eye witness to the
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occurrence, they did not support the prosecution case and they were
declared hostile to the prosecution.
4. Question to be considered is whether the finding entered by the
trial court against the appellant is sustainable or not?
5. The prosecution case is that the appellant along with other were
found transporting 1056 bottles of Original Coconut A.C. Special Fenny.
Neither PW3 not PW4 stated that the contraband article was seized in
connection with any import, export or transit of liquor. In Surendran ‘s case
(Supra) a Division of this Court held that when a person is in “possession
of illicit liquor” while illegally importing it, the case would be covered
under section 55(a) of the Abkari Act. In Sudhepan @ Aniyan V. State of
Kerala (2005(2) KLT (Cri) 631) , this Court held that under section 55(a)
the prosecution must allege and prove that possession of the contraband
liquor was incidental or in connection with export, import, transport or
transit of liquor.
6. The evidence of PW3 would show that two bottles were taken as
sample and all the accused were arrested, but the appellant alone faced trial.
Before the trial court though PW3 stated that all the accused were
transporting the contraband article in the vehicle, but neither PW3 nor PW4
stated that the contraband articles were transported from one place to
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another within the State. The only allegation is that the accused were
transporting the contraband article. The word “transporting” is defined both
in section 3 of the Abkari Act as well as Rule 11 of Foreign Liquor Rules.
Section 11 of the Foreign Liquor Rules deals with transport, which reads as
follows:-
“11. Transport: No quantity of foreign liquor in excess
of quantity notified by the Government under section 10 and
13 of the Act shall be transported from one place to another
within the Sate unless the same is covered by a transport
permit issued by the Excise Inspector in charge of the Range
of origin. A copy of such permit shall be forwarded by the
Excise Inspector concerned to the Excise Inspector in charge
of the Range to which the consignment is destined. The Excise
Inspector at the destination shall verify the consignment on
arrival and see that the quantity is duly credited in the
accounts in case the transport is by a licensee.
xxx xxx xxx xxx
Provided also that a person can transport a quantity of
foreign liquor not exceeding the quantity notified by the
Government under section 10 and 13 of the Act without a
transport permit issued by the authority concerned.
As per sub-section (18) of section 3 of the Abkari Act, transport means to
move from one place to another within the State. If that be so, the evidence
of Pws.3 and 4 is accepted, it can be seen that the accused were
transporting the contraband articles in violation of Rule 11 of the Foreign
Liquor Rules. As per the last proviso to Rule 1, a person can transport a
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quantity of foreign liquor not exceeding the quantity notified by the
Government under section 10 and 13 of the Act without a transport permit
issued by the authority concerned. If that be so, the finding of the trial court
that the appellant has committed an offence under section 55(a) of the
Abkari Act is not legally sustainable.
7. As per evidence of Pws.3 and 4, the appellant and other accused
were transporting the foreign liquor exceeding the quantity notified by the
Government 10 and 13 of the the Abkari Act. PW3 though stated that 1056
quarter bottles of Coconut A.C. Special Fenny were seized, out of which
two bottles were taken as sample for analysis. The sample and residue were
produced before the court only on 27-4-1998. PW3 admitted that the
samples were taken and labelled and sealed in the presence of independent
witnesses. But when the samples were produced before the court, no seal
or label is seen. As per Ext.P1 mahazar and Ext.P2 F.I.R. the properties
seized were produced before the court. But, there is no record to show that
the properties seized were produced before the court. No forwarding letter
has been produced before the court. Apart from this neither PW3 nor PW4
has given any explanation for the non production of the contraband article
before the court. There is no evidence to show that the sample and residue
were kept in the property. In this context, PW3 stated that the contraband
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article and the sample were entrusted with the Station House officer. He has
not been examined before the court regarding the safe custody of the
contraband article. In a decision reported in Narayani V. Excise Inspector
(2002(3) KLT 725, this Court held that in the absence of any evidence to
prove that residue and sample were kept in the proper custody till the date
of producing the same before the court, the chance of tampering with the
sample taken and the residue seized could not be ruled out. In the above
circumstances, this Court has to consider the case set up by the appellant
under section 313 Cr.P.C. The appellant had stated before the court that the
case was foisted against him by the police. He also stated that he was the
driver of the jeep and while he was waiting for his jeep, the police wanted
to get his jeep. He refused to give the jeep and for that reason he was made
an accused. The stand taken by the police that other accused persons who
were arrested along with the appellant were absconded is doubtful. It is the
case of Pws.3 and 4 accused were arrested and produced before the court.
But there is no evidence regarding the circumstances under which the other
accused were absconding.
8. In the above circumstances, this Court is of the view that the
seizure of the contraband article as alleged by the prosecution is not proved
beyond reasonable doubt. If that be so the benefit of doubt has to be given
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to the appellant.
9. Hence, the conviction and sentence ordered against the appellant
are set aside and the appellant is acquitted. The bail bond executed by the
appellant shall stand cancelled.
The appeal is allowed as above.
K. Thankappan,
Judge.
mn
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K. Thankappan,J.
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Crl.A. No. 1767 of 2003
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Judgment
27-9-2007