Kerala High Court
Kartha vs State Of Kerala on 15 January, 2025
CRL.A NO. 2738 OF 2009 1 2025:KER:2843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
CRL.A NO. 2738 OF 2009
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.20 OF 2009 OF
ADDITIONAL SESSIONS COURT (ADHOC)-I, KOTTAYAM
APPELLANT/ACCUSED:
KARTHA
S/O.KANDA
VADAKKEKILIYAZHATHU HOUSE, CHEMPU KARA,
CHEMPU VILLAGE,, VAIKOM, KOTTAYAM.
BY ADV SRI.SURIN GEORGE IPE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
SR.PP-SRI.RENJIT GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2738 OF 2009 2 2025:KER:2843
JUDGMENT
This appeal is at the instance of the sole accused in SC
No.20 of 2009 on the file of Additional Sessions Judge (Adhoc)
I, Kottayam, challenging his conviction and sentence under
Section 55(i) of the Abkari Act, vide judgment dated
15/12/2009.
2. The prosecution case is that on 14/8/2008 at about 6 pm
while PW4 and excise party were doing patrol duty at Chempu-
Mathunkal road near the chapel of Mathunkal church, the
accused was found selling Indian made foreign liquor. One
bottle was seized from his loin, and ten bottles were seized
from the compound of the nearby chapel.
3. On committal and on appearance of the accused before
the trial court, charge was framed against him under Sections
55(a) and (i) of the Abkari Act, to which he pleaded not guilty
and claimed to be tried.
4. PWs 1 to 5 were examined, and Exts.P1 to P6 were
marked and MOs 1 to 3 were identified, from the side of
CRL.A NO. 2738 OF 2009 3 2025:KER:2843
prosecution.
5. On closure of prosecution evidence, accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record and pleaded that
he is innocent.
6. On analyzing the facts and evidence, and on hearing the
rival contentions from either side, the trial court found the
accused guilty under Section 55(i) of the Abkari Act, and he was
convicted thereunder. He was sentenced to undergo simple
imprisonment for one year and to pay fine of Rs.1 lakh, with a
default sentence of simple imprisonment for one month.
Aggrieved by the conviction and sentence, the accused has
preferred this appeal.
7. Pending appeal, the appellant passed away on 3/3/2018.
But since the sentence includes fine amount also, going by the
decision Ramesan (dead) Through Lr. Girija A. v. State of
Kerala [2020 KHC 6059], the appeal will not abate. Though the
legal heirs did not come up, to prosecute the appeal, learned
CRL.A NO. 2738 OF 2009 4 2025:KER:2843
counsel for the appellant was ready to argue the matter.
8. Heard learned counsel for the appellant/accused and
learned Public Prosecutor.
9. Learned counsel for the appellant would argue that,
during patrol duty PW4 and excise team found a group of
persons standing near the chapel at Chempu-Mathunkal road,
and it is the case of PW4, that except the accused all others ran
away. From the body of the accused, one bottle of 375 ml
Planters Choice XXX Rum was seized. Ten bottles of 375 ml
each Planters Choice XXX Rum was found in a plastic bag, near
the chapel.
10. Learned counsel for the appellant would argue that,
there is no evidence to show that, ten bottles seized from near
the chapel were kept by the accused. If at all it is admitted that
375 ml of Planters Choice XXX Rum was seized from the
possession of the accused, it was within the permissible quantity
of Indian made foreign liquor, which a person can possess.
PW4 was admitting the fact that the bottles of Planters Choice
CRL.A NO. 2738 OF 2009 5 2025:KER:2843
XXX Rum seized were having the seal of Kerala State
Beverages Corporation, and Ext.P1 mahazar also will show that,
those bottles were bought from a Government approved liquor
shop. No evidence is there to show that the accused was selling
Indian made foreign liquor. The mahazar says that the accused
admitted before PW4 that he was selling Planters Choice XXX
Rum bought from Government approved liquor shop, and he
was possessing Rs.600 as its sale proceeds. That admission is
not admissible in evidence, and there is no corroboration from
any independent sources also.
11. PWs 2 and 3 the independent witnesses did not see the
excise officials seizing Indian made foreign liquor from the
possession of the accused or his arrest from near the chapel at
Chempu-Mathunkal road. The arrest memo alleged to have
been prepared by PW4 at the scene of crime, was not marked
by the prosecution.
12. The seizure mahazar will not show the specimen
impression of the seal used by PW4, for sealing the bottles of
CRL.A NO. 2738 OF 2009 6 2025:KER:2843
Indian made foreign liquor allegedly seized from the possession
of the accused. In the mahazar it is mentioned that the plastic
bottles were sealed using his personal seal MTM. But that seal
was not affixed in the mahazar. If he used his personal seal
impression for sealing the bottles at the place of occurrence
itself, there was no reason for him, for not affixing that seal in
the seizure mahazar also. So, the absence of specimen
impression of the seal in the mahazar casts serious doubt,
regarding the sealing of the bottles at the place of occurrence.
13. PW4 admitted before court that the persons who ran
away from the place of occurrence were not familiar to him and
he does not know whether they were possessing Indian made
foreign liquor for sale. Prosecution failed to prove that it was the
accused who kept 10 bottles of 375 ml each Planters Choice
XXX Rum, near the chapel of Mathunkal church. So, at the
most he can be held responsible for possessing a bottle of 375
ml Planters Choice XXX Rum as it was seized from his loin. As
we have already seen, that bottle was bearing the seal of Kerala
CRL.A NO. 2738 OF 2009 7 2025:KER:2843
State Beverages Corporation, and it was purchased from a
Government approved liquor shop. Since the bottle of Planters
Choice XXX rum seized from the body of the accused contained
only 375 ml, it was not exceeding the permissible limit, which a
person can possess. So the conviction of the accused under
Section 55(i) of the Abkari act by the learned trial court, without
appreciating these facts, cannot be sustained, and hence the
impugned judgment is liable to be set aside.
In the result, the appeal is allowed setting aside the
conviction and sentence of the accused as per the impugned
judgment. He is acquitted of the offence alleged under Section
55(i) of the Abkari Act, and his bail bond stands cancelled.
Sd/-
SOPHY THOMAS
JUDGE
ska
