Kerala High Court
Libin vs State Of Kerala on 24 February, 2025
Criminal Appeal No.61 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
CRL.A NO. 61 OF 2014
CRIME NO.65/2010 OF EXCISE RANGE OFFICE, KOTHAMANGALAM.
AGAINST THE JUDGMENT DATED 21.12.2013 IN SC NO.201 OF
2012 ON THE FILE OF THE COURT OF SESSION, ERNAKULAM.
APPELLANTS/RESPONDENTS/ACCUSED:
1 LIBIN,
AGED 26 YEARS, S/O. THANKACHAN,
ATTUVAYIL HOUSE, KANAKKARI DESOM,
KANAKKARI VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT.
2 SUNNY,
AGED 36 YEARS, S/O. GEORGE,
AAKKEKUNNEL HOUSE,
KIZHAKKUMBHAGOM, ETTUMANOOR VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT.
BY ADV SRI.T.R.HARIKUMAR
RESPONDENT/APPELLANT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI - 682 031.
BY ADV. SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.02.2025, THE COURT ON 24.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.61 of 2014
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C.S.SUDHA, J.
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Criminal Appeal No.61 of 2014
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Dated this the 24th day of February 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellants who are accused 1 and 2 in S.C.No.201 of 2012 on the file
of the Court of Session, Ernakualm challenge the conviction entered
and sentence passed against them for the offence punishable under
Section 55(a) (i) of the Kerala Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 19/09/2010 at about
10:30 a.m. the accused two in number were found transporting 171
litres of Indian Made Foreign Liquor (IMFL) in contravention of the
provisions of the Act in a car bearing registration no.KL-05/Y 2225
through the Kothamangalam-Muvattupuzha National Highway near
Ikkara colony junction, Mathirappally. Hence, the accused persons as
per the final report are alleged to have committed the offences
punishable under Sections 55(a)(i) and 58 of the Act.
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3. Crime no.65/2010, Excise Range Office, Kothamangalam,
that is, Ext.P2 crime and occurrence report was registered by PW1,
Excise Range Inspector, who is the Detecting Officer. Investigation
was conducted by PW8, Excise Circle Inspector, Excise Enforcement
and Anti Narcotic Special Squad, Ernakulam, who on completion of
the investigation submitted the final report before the jurisdictional
magistrate alleging the commission of the aforesaid offences by the
accused persons.
4. On appearance of the accused persons, the
jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed the
case to the Court of Session, Ernakulam. The case was taken on file as
S.C.No.201/2012 and thereafter made over to the Additional Sessions
Judge, Muvattupuzha, for trial and disposal. When the accused
persons appeared before the trial court, a charge under Section 55(a)
(i) of the Act was framed, read over and explained to the accused
persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW8 were
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examined, Exts.P1 to P18 and M.O.1 to M.O.5 were marked in
support of the case. After the close of the prosecution evidence, the
accused persons were questioned under Section 313(1)(b) Cr.P.C.
with regard to the incriminating circumstances appearing against them
in the evidence of the prosecution. The accused persons denied all
those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit
the accused persons under Section 232 Cr.P.C., they were asked to
enter on their defence and adduce evidence in support thereof. DW1
and DW2 were examined on behalf of the accused persons.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment found the accused persons guilty of the offence punishable
under Section 55(a)(i) of the Act and hence sentenced them to
rigorous imprisonment for a period of two years each and to a fine of
₹1,00,000/- each and in default to rigorous imprisonment for a period
of six months each. Set off under Section 428 Cr.P.C. has been
allowed. Aggrieved, the accused persons have come up in appeal.
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8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
the accused persons/appellants by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel appearing
for the accused persons/appellants that the evidence on record does
not make out a case under Section 55(a)(i) of the Act. At best the
offence made out is only under Section 63 of the Act as held in
Narayanan Nair v. State of Kerala, 2011 (3) KHC 472 ; Tippu
Mohammed v. State of Kerala, 2014 KHC 852 and in two
unreported judgments of this Court, dated 03/07/2020 and 06/11/2020
in Crl.A.No. 791/2011 and Crl.A.No.2431/2007 (R.Rajesh v. State
and Jayasenan v. Circle Inspector, Excise Special Squad,
Malappuram).
11. The prosecution case as per the final report/charge
sheet reads thus:- the accused persons two in number with the
intention of making unlawful gain by selling IMFL manufactured and
intended for sale solely in Mahe, were found unauthorizedly
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transporting 171 litres of IMFL in a Maruthi WagonR bearing
registration no.KL-05/Y 2225. However, the court charge reads thus:-
"That at about 10.30 am on 19/9/10 you were found transporting
171 litres of Indian made foreign liquor in contravention of the
provision of Abkari Act in car bearing registration No.KL-5/Y 2225
through Kothamangalam-Muvattupuzha national highway near Ikkara
colony junction, Mathirappilly by C.W.1, the then Excise Circle
Inspector, Kothamangalam and thereby you committed an offence
punishable under Section 55(a)(i) of Abkari Act and within my
cognizance."
12. As rightly pointed out by the learned counsel for the
accused persons/appellants, the court charge must contain the specific
allegations against the accused which they are liable to answer. In the
court charge there is only an allegation that the accused persons were
found transporting IMFL in contravention of the provisions of the
Act. If the accused persons were only found transporting liquor, the
offence under Section 55(a)(i) of the Act would not be made out as
held by several earlier decisions of this Court. Section 55(a) of the Act
states that, whoever in contravention of the Act or of any rule or order
made under the Act, imports, exports, transports, transits or possesses
liquor or any intoxicating drug, shall be punished. Section 6 of the Act
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states that no liquor or intoxicating drug shall be imported except with
the permission of the Government and unless the duties, taxes, fees
etc. due to the Government have been paid. Section 3(16) of the Act
says that 'import' means to bring into the State. Rule 9 of the Foreign
Liquor Rules states that, no foreign liquor shall be imported into the
State except under a permit issued in that regard. Rule 11A of the
Rules states that, no quantity of foreign liquor exceeding the quantity
notified by the Government under Sections 10 and 13 of the Act shall
be possessed or stored by any person within the State unless the same
is covered by a permit issued by an officer to do so. Section 13 of the
Act states that, no person, not being a licensed manufacturer or vendor
of liquor or intoxicating drugs, shall have in his possession any
quantity of liquor or intoxicating drugs in excess of such quantities as
prescribed under the notification issued by the Government. Section
13A of the Act provides that, the Government may, by notification,
prohibit the possession by any person or class of persons, either
throughout the whole State or in any local area, of any liquor or
intoxicating drug either absolutely or subject to such conditions as the
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Government may prescribe. As per the earlier notification issued by
the Government, namely, SRO No.127/99 dated 05/02/1999, the
maximum quantity of IMFL which a person can possess without any
permit, was only 1.500 litres. However, the Government by SRO No.
725/2003 dated 02.08.2003, has enhanced the maximum quantity of
IMFL to 3 litres.
13. A Division Bench of this Court in Surendran v.
Excise Inspector, 2004 (1) KLT 404 held that in order to attract the
offence under Section 55(a) of the Act, the possession of liquor must
be in the course of import, export, transport or transit. The question
was again considered by another Division Bench of this Court in
Mohanan v. State of Kerala, 2007 (1) KHC 752 in which case the
Bench reiterated the position that Section 55(a) of the Act would be
applicable only when persons illegally import or transport liquor or
when they are in possession of liquor while illegally importing. It was
held that sub-clause (a) of Section 55 deals with illegal imports and
exports of liquor or intoxicating drugs or transport or possession of
such liquor covered under import or export.
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14. In the instant case, the total quantity of IMFL found
in the possession of the accused persons/appellants was 171 litres.
The materials on record show that the bottles of liquor seized from
the possession of the accused persons/appellants had the label which
indicated that it was meant for sale in Mahe alone. The prosecution
relies on the testimony of official witnesses as well as on Exts. P16
and P17 toll fee receipts to show that the accused persons had
purchased the same from Mahe. The learned counsel for the accused
persons/appellants pointed out that Exts.P16 and P17 toll fee receipts
would only show that the accused persons had travelled through
Kozhikode. This would not automatically lead to the conclusion that
the liquor was purchased from Mahe or that they had imported it from
Mahe. Therefore, the question to be considered is whether mere
possession of liquor manufactured outside the State would amount to
proof of import.
15. This Court in Narayanan Nair (Supra) has held
that, in order to prove the offence under Section 55(a) read with Rule
9, the prosecution must prove that the accused was in possession of
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IMFL and that the accused had 'brought' IMFL into the State of
Kerala from some place which lies outside the State. It was further
held that the act of 'bringing' is different from being in 'possession'. A
person found to be in possession may not be the one who has brought
the liquor into the State and therefore, only for the reason that a
person is found to be in possession of the liquor, it cannot be
concluded that he himself had brought the article into the State. In yet
another decision, that is, Tippu Mohammed (Supra) it has been held
that in the absence of any evidence to find that the liquor allegedly
possessed by the appellant was imported in violation of the provisions
of the Act, merely for the reason that there is a writing in the mahazar
or that the labels on the bottles contained a description 'for sale in
Karnataka', it cannot be found that the prosecution has discharged its
burden of proving that the accused had imported liquor.
16. As noticed earlier, the accused persons herein were
found to have been in possession of 171 litres of IMFL. However, in
the light of the precedents herein above mentioned it can only be held
that there is no evidence to find that the accused persons themselves
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had purchased the liquor from Mahe and brought it into the State. In
such circumstances, it can only be found the offence attracted would
be one punishable under Section 63 of the Act for possessing IMFL in
excess of the quantity prescribed. See Sabu v. State of Kerala , 2007
(3) KHC 753 : 2007 (4) KLT 169, Mohanan v. State of Kerala,
2007 (3) KHC 718 : 2007 (4) KLT 408, Purushothaman v. State of
Kerala, 2007 (3) KHC 541, Raman v. State of Kerala, 2007 (3)
KHC 981 : 2007 (4) KLT 223, Abdulla v. Station House Officer,
2007 (4) KHC 907, Nobbey v. State of Kerala, 2011 (1) KLD 11,
Ammed v. State of Kerala, 2013 (1) KHC 199 : 2013 (1) KLT 146
and Sobichan @ Joseph v. State of Kerala, 2013 KHC 3358.
17. Now coming to the question whether the evidence
on record is satisfactory to find the accused persons guilty of the
offence under Section 63 of the Act. PW1 and PW8, the Excise
Range Inspector and Excise Circle Inspector respectively attached to
the Excise Range Office, Excise Circle Office, Kothamangalam
deposed in tune with the prosecution case. It is true that PW2 and
PW3, the independent witnesses, turned hostile and deposed that they
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had neither seen the incident nor stated to the police that they had seen
the incident, though they admit that they are attestors to Ext.P1
mahazar prepared by PW8. It is true that the vehicle in which the
liquor was found does not belong to the accused persons. It belongs to
PW5 who is the registered owner of the car. PW5 deposed that he had
entrusted the car during the relevant period with his son-in-law,
namely, PW6. PW6 in turn deposed that on 18/09/2010 at 05:00 p.m.
he had given the car on rent-a-car basis to one Hari ailing from
Ochira. He has hearsay knowledge that the car had been seized at
Kothamangalam by the Excise officials while two persons were
transporting liquor in the same. PW6 deposed that the accused
persons are not known to him. He denied the prosecution version that
on 18/09/2010 he had entrusted the car to the accused persons on rent-
a-car basis. The accused persons in order to establish their defence
examined DW1 and DW2. DW1 deposed that the first and the second
accused are his employees ; that he is conducting a retail business in
furniture ; he buys furniture from wholesale shops and sells it on retail
; that it is the accused persons who go and collect the furniture in his
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pickup van bearing registration No.KL-52/1934. To a leading
question as to whether he had sent the accused persons on 19/09/2010
to bring furniture, he answered in the affirmative. DW1 further
deposed that by 09:00 a.m. the accused persons had left for
Ettumanoor. By 03:00 p.m., DW2-Babu from whom he usually buys
furniture, rung him up and told him that the accused persons had not
reached his shop. The mobile phones of the accused persons were
found to be switched off. By 05:00 p.m., he received a call from
Excise office, Kothamangalam, and he was told that the accused
persons are in the excise office. DW1 further deposed that the
accused persons had an altercation with the excise officials and hence
they were taken to the excise office. By 06:30 p.m. he reached the
excise office. He was informed that the accused persons would be
produced before the court. On the same day itself the pickup van was
released to him. In the cross-examination DW1 deposed that he is
aware of the allegation against the accused persons. To a question
whether he knew that the accused persons on 19/09/2010 by 11:30
a.m. while transporting IMFL in WagonR car bearing registration
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No.KL-05/Y 2225 was apprehended by the excise officials, answered
in the negative.
17.1. DW2 deposed that he knew DW1 to whom he sells
furniture. It is usually the accused persons who come for taking
delivery of furniture from his shop. On a day in September 2010 he
was told that the accused persons would come to his shop for taking
delivery of furniture. But they never reached his shop. So he
informed the matter to DW1.
18. Ext.P1 seizure mahazar prepared
contemporaneously by PW8 on 19/09/2010 reached the court on the
same day itself. Ext.P1 mahazar contains the specimen of the seal
affixed by PW8 on the sample bottle as well as in the bottles
containing the remaining liquor. Ext.P5 forwarding note also contains
the impression of the specimen seal which tallies with the one
contained in the mahazar. The sample was entrusted to Shaju P.V.,
Excise guard, Excise range office, Kothamangalam, who produced the
sample before the laboratory for chemical examination. This is borne
out from the covering letter of the jurisdictional magistrate seen along
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with Ext.P5 forwarding note as well as in Ext.P18, the chemical
report. In Ext.P18 it is stated that on 29/09/2010 the sample was
received from Excise guard Shaju P.V. and that in each of the six
sealed packets there was a sealed bottle containing 200 ml of clear
and reddish-brown liquor stated to be illicit IMFL in crime
no.65/2010. The seals on the packets and the bottles were intact and
found tallied with the sample seal provided. Therefore the link-
evidence is complete and there is assurance that the very same
samples drawn by PW8 from the liquor seized at the scene of the
occurrence was produced before the court and sent for chemical
analysis and that Ext.P8 chemical analysis report relates to that
samples. The testimony of DW1 and DW2 referred to earlier makes it
clear that it would not help the accused persons in any way. In the
aforesaid circumstances, it can only be held that the accused persons
have committed the offence punishable under Section 63 of the Act
for possessing IMFL in excess of the quantity prescribed. Therefore,
the conviction entered against the accused persons/appellants by the
trial court for the offence punishable under Section 55(a)(i) of the Act
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has to be modified as conviction under Section 63A of the Act.
Taking into account the facts and circumstances of the case and the
fact that it is nearly 15 years since the commission of the offence, I
am of the view that a sentence of fine of ₹5,000/- which is the
maximum that can be imposed would meet the ends of justice.
In the result, appeal is allowed in part. The conviction and
sentence of the appellants/accused persons by the trial court under
Section 55(a) (i) of the Act are set aside and they are convicted for the
offence punishable under Section 63 of the Act and hence sentenced
to pay a fine of ₹5,000/- each and in default of payment of fine, to
undergo simple imprisonment for a period of one month each.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
