Kerala High Court
Tomy Antony vs State Of Kerala on 27 January, 2025
Crl.Appeal Nos.30 and 32 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 30 OF 2014
AGAINST THE JUDGMENT DATED 10.12.2013 IN SC NO.622 OF
2010 ON THE FILE OF THE SESSIONS COURT, PALAKKAD
APPELLANT/ACCUSED:
TOMY ANTONY
AGED 55 YEARS
S/O.ANTONY,THOPPIL HOUSE,
VYTILA, KANAYANNUR TALUK,
ERNAKULAM
BY ADVS.
SRI.K.ANAND
SRI.N.RAJESH PALAKKAD
SRI.S.SREENATH
RESPONDENT/STATE/COMPLAINANT:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
2 THE EXCISE INSPECTOR
EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL
SUQAD, PALAKKAD-678001
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, ALONG WITH CRL.A.32/2014, THE COURT ON
27.01.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 32 OF 2014
AGAINST THE JUDGMENT DATED 10.12.2013 IN SC NO.622 OF
2010 ON THE FILE OF THE SESSIONS COURT, PALAKKAD
APPELLANT/ACCUSED:
BINU,
AGED 37 YEARS,
S/O.SASIDHARAN, SALM KARODE VEETTIL,
THEKKEKARA, MEENACHIL, KOTTAYAM.
BY ADV SRI.N.K.MOHANLAL
RESPONDENTS/COMPLAINANT:
1 CIRCLE INSPECTOR OF EXCISE,
EXCISE ENFORCEMENT & ANTI NARCOTIC SPECIAL SQUAD,
PALAKKAD EXCISE RANGE OFFICE, PALAKKAD, 678574.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, ALONG WITH CRL.A.30/2014, THE COURT ON
27.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.30 and 32 of 2014
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C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal Nos.30 and 32 of 2014
---------------------------------------------
Dated this the 27th day of January 2025
JUDGMENT
In these appeals filed under Section 374(2) Cr.P.C. the
appellants who are accused no.1 and 2 in S.C.No.622/2010 on the
file of the Court of Session, Palakkad, challenge the conviction
entered and sentence passed against them for the offence
punishable under Section 55(a) of the Kerala Abkari Act, 1 of
1077 (the Act).
2. The prosecution case is that on 25/06/2008 at
about 10:00 a.m. at Walayar check post in Coimbatore - Palakkad
National Highway situated in Puthussery East Village, Palakkad
Taluk, accused no.1 (A1) was found in possession and
transporting 6080 litres of rectified spirit in a tanker lorry bearing
a fake registration number TN-69-K-4618. Accused no.2 (A2)
was the owner of the tanker lorry. Accused no.3 (A3) had
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procured the rectified spirit and accused no.4 to 6 (A4 to A6)
actively aided and gave all assistance to A1 in the smooth import
and transportation of the contraband through the check post. All
the accused persons were alleged to have acted in furtherance of
their common intention of transporting the contraband and hence
as per the final report, they were alleged to have committed the
offence punishable under Section 55(a) of the Act.
3. PW10, the Excise Inspector, Excise Check Post,
Walayar is the Detecting Officer who arrested A1 and produced
the accused; the vehicle containing the contraband and the
documents prepared contemporaneously before PW19, Excise
Range Inspector, Palakkad, who registered crime no.27/2008,
Excise Enforcement and Anti Narcotic Special Squad, Palakkad
based on which Ext.P26 crime and occurrence report was
prepared. Investigation was conducted by PW19, CW25 and
PW18. The investigation was completed by PW20, who submitted
the charge sheet against six accused persons alleging the
commission of the offence punishable under the aforementioned
section.
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4. On appearance of all the accused persons, the
jurisdictional magistrate after complying with all the formalities
contemplated under Section 209 Cr.P.C. committed the case to the
Court of Session, Palakkad, which court took the case on file as
S.C.No.622/2010. The case was made over to the Additional
District and Sessions Judge-III, Palakkad for trial and disposal.
On 12/11/2012, a charge under Section 55(a) 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 PW20
were examined and Exts.P1 to P35 and M.O.1 series to MO.4
were got marked in support of the case. After the close of the
prosecution evidence, the accused 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 under Section 232 Cr.P.C., they were asked to
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enter on their defence and adduce evidence in support thereof.
DW1 was examined and Ext.D1 was marked 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 no evidence against accused nos.3 to 6
and hence acquitted them under Section 235(1) Cr.P.C. for the
offence punishable under Section 55(a) of the Act. However,
accused nos.1 and 2 were found guilty of the offence punishable
under Section 55(a) of the Act and hence they have been
convicted to rigorous imprisonment for three years and to a fine of
₹1,00,000/- and in default to simple imprisonment for six months.
Set off under Section 428 Cr.P.C. has been allowed. Aggrieved,
accused nos.1 and 2 have come up in appeal.
8. The only point that arises for consideration in
these appeals are whether the conviction entered and sentence
passed against the appellants/accused nos.1 and 2 by the trial
court are sustainable or not.
9. Heard both sides.
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10. It was submitted by the learned counsel for the
appellants/accused persons that there has been a blatant violation
of the mandatory provisions contemplated under Section 53A of
the Act and hence the trial court ought to have acquitted the
accused persons. However, the trial court on a complete mis-
appreciation of the evidence on record and the law on the point,
grossly erred in convicting the accused persons. Hence the
argument is that the impugned judgment is liable to be reversed.
In support of the argument, reference was made to the dictums in
Lalitha v. State of Kerala, 2012 (1) KLT 550; Rajamma v.
State of Kerala, 2014 (1) KLJ 624; M.Narayanan v. State of
Kerala, MANU/KE/1324/2020; Balakrishna Rai v. State of
Kerala, 2020 (3) KLJ 240; Anilkumar v. State of Kerala, 2020
(3) KLJ 512; Suresh v. State of Kerala, 2020 (3) KLJ 766 and
Diwakar v. State of Himachal Pradesh, 2020 ICO 1212.
10.1. Per contra, it was argued by the learned public
prosecutor that there has been substantial compliance of all the
mandatory provisions and hence the impugned judgment calls for
no interference.
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11. As noticed earlier, PW10, the then Excise
Inspector, Excise check post, Walayar, is the detecting officer.
PW12, the preventive officer is the officer who is alleged to have
been present along with PW10 when the offence was detected; the
accused arrested and the contraband seized. PW10 when
examined deposed that on 25/06/2008 while he was on check post
duty, in the morning by about 07:00 a.m. a tanker lorry bearing
registration no.TN-69-R-4618 was seen coming from Coimbatore
through the green channel and reached in front of the Excise
check post. On enquiry with the driver, that is, A1, about the
contents on the lorry, he replied that it was empty. However, not
satisfied with the reply of A1, PW10 decided to inspect the
vehicle. When A1 was directed to open the tank, he became
perplexed and tried to take to his heels. A1 was restrained by
CW3, an Excise Guard and thereafter in the presence of
independent witnesses and other Excise officials, A1 was
questioned and then he disclosed that the tanker lorry contained
rectified spirit. On inspecting the vehicle, 190 plastic cans/jars
having capacity of 35 liters were found to contain some liquid. On
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tasting and smelling the contents, it was found that the same was
rectified spirit. A1 on questioning admitted that he had no license
or permit to possess, import or transport such quantity of spirit.
Therefore, he was arrested on the spot and Ext.P1 arrest memo
prepared. On searching the cabin of the lorry, a file was seen
which contained registration certificate, tax card, national permit,
insurance certificate, etc. The seized cans/jars were numbered as
1 to 190 consecutively and sample was drawn from the cans/jars
which were numbered as 25, 75, 125 and 175. The sample bottles
were tightly closed, tied, sealed and labelled, which label
contained a brief history of the case, the name and signature of
PW10, the witnesses and the signature of A1. All the cans/jars
seized were also sealed and labelled. Ext.P8 is the detailed
mahazar prepared at the time of seizure. Thereafter, he along with
A1, the lorry, the contraband articles and the documents prepared
contemporaneously were produced before PW19 for necessary
follow up action. The file with the documents found in the cabin
of the lorry was marked as Ext.P9 series. PW10 identified A1 in
the box.
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11.1. PW12, Preventive Officer, Walayar check post
supports the prosecution case and deposed in tune with the
testimony of PW10. PW8 and PW9, the independent witnesses
and attestors to Ext.P8 seizure mahazar, turned hostile and
deposed that they had neither seen the incident nor stated to the
Excise Inspector that they had seen the incident. PW9 even went
to the extent of denying his signature in Ext.P8 mahazar.
11.2. A2 is alleged to be the owner of the tanker lorry
in which the contraband was transported. A2 is alleged to have
purchased the vehicle from PW16, who when examined supported
the prosecution case. PW16 identified A2 in the box and deposed
that he had sold the lorry to A2. Though the lorry was purchased
by A2, the registration stands in the name of PW17, who in turn
deposed that he had never purchased any vehicle in his name, for
which he did not have the financial resources also. PW17 deposed
that he had lost his purse in a pick pocketing incident, at which
time his purse contained his driving license also. He got back the
driving license after about two weeks. He had not entrusted his
documents to any person. However, he deposed that he is
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acquainted with one Raju and that he had given his driving license
to the said person for taking a xerox copy. PW17 also deposed
that he has neither purchased a vehicle nor is he aware that any
vehicle has been purchased in his name.
12. The prosecution relies on the testimony of
PW10 and PW12 to prove the case. As noticed earlier, the
independent witnesses have turned hostile. It is true that merely
because the independent witnesses have turned hostile is no
ground to reject the prosecution case provided their testimony is
credible and trustworthy. So I will examine whether the
testimony of PW10 and PW12 is sufficient to prove the case
beyond reasonable doubt against the accused persons. PW10 as
well as PW12 deposed that after the vehicle containing the
contraband had been seized, sampling was done by PW10. PW19
who registered the crime, deposed that he had produced the
cans/jars containing the residue spirit after drawing sample as well
as the other cans/jars before the Deputy Excise Commissioner for
initiating proceedings under Section 53A of the Act.
13. Here it would be apposite to refer to Section
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53A, which reads thus -
"53A. Disposal of seized liquor, intoxicating drugs or
articles.- (1) Notwithstanding anything contained in this
Act, the State Government may having regard to the
nature of the liquor, intoxicating drug, or article, its
vulnerability to theft, substitution, constraints of proper
storage space or any other relevant consideration, by
notification in the official Gazette, specify such liquor,
intoxicating drug or article which shall, as soon as may be
after its seizure, be disposed of by the authorised officer
referred to in section 67B, in such manner as the
Government may, from time to time determine after
following the procedure hereinafter specified.
(1.1.2) Where any such notified liquor, intoxicating
drug or article has been seized under this Act, the
authorised officer shall prepare an inventory of such
liquor, intoxicating drug or article containing such details
relating to their description, quality, quantity, mode of
packing, marks, numbers of such other identifying
particulars of the liquor, intoxicating drug or article or
the packing containers in which they are kept, place of
origin and other particulars, as the authorised officer may
consider relevant to identify the liquor, intoxicating drug
or article in any proceedings under this Act and make an
application to any Magistrate having jurisdiction over the
area where the seized liquor, intoxicating drug or articles
or stored for the purpose of,-
(a) certifying the correctness of the inventory so
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prepared; or
(b) taking, in the presence of such Magistrate,
Photographs of such liquor, intoxicating drug or article
and certifying such photographs as true; or
(c) allowing to draw representative samples of
such liquor, intoxicating drug or article in the presence
of such Magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-
section (2) the Magistrate shall, as soon as may be, visit
the place where such liquor, intoxicating drug or articles
are stored and take appropriate steps as specified in
clauses (a), (b) and (c) of sub-section (2), and allow the
application.
(4) Where any liquor or intoxicating drug or
article under this Act has been kept under the custody of
any court in connection with any offence committed under
this Act, before the commencement of the Abkari
(Amendment) Act, 2003 or has been brought before a
Magistrate without complying the procedure laid down in
sub-section (2), the authorised officer shall obtain prior
permission of the Court or Magistrate before initiating
proceedings under sub-section (2).
(5) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (Central Act 1 of 1872) or the
Code of Criminal Procedure, 1973 (Central Act 2 of
1974), any Court trying an offence under this Act, shall
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treat the inventory, the photographs of liquor,
intoxicating drug or article and any list of samples drawn
under sub sections (2) and (4) and certified by the
Magistrate, as primary evidence in respect of such
offence."
14. As held by a learned Single Judge of this Court
in M.Narayanan (Supra), Section 53A comes into play when the
contraband seized under the Act has to be disposed of by the
authorised officer immediately after its seizure. The authorised
officer shall prepare an inventory of such contraband which shall
contain the necessary details which are relevant to identify the
liquor in any proceedings under the Act. The authorised officer
has to make an application to the magistrate concerned for the
following purposes, namely - (a) certifying the correctness of the
inventory so prepared ; or (b) taking photographs of the liquor in
the presence of the Magistrate and to certify such photographs as
true ; or (c) to allow drawing of representative samples of the
liquor in the presence of the magistrate and to certifying the
correctness of any list of samples so drawn. Sub-section (5) of
Section 53A says that the certificate so issued by the magistrate
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shall be treated as primary evidence during the trial in respect of
the evidence. The very purpose of the provisions contained in
Section 53A of the Act is disposal of large quantity of seized
contraband liquor immediately after the seizure on retaining
evidence regarding its seizure. If the authorised officer and the
magistrate follow the mandate under Section 53A of the Act
strictly and scrupulously, it is not necessary for the prosecution to
produce the bulk quantity of seized material before the court
during the trial of the case and mark it as a material object. Then
the certificate issued by the Magistrate in respect of the inventory
of liquor and the list of samples drawn in his/her presence shall
be treated by the court as primary evidence of the offence.
However, when the procedure under Section 53A of the Act is not
adopted and strictly followed and when the bulk quantity of liquor
is not produced and when no evidence is also adduced to show
that a bulk quantity of contraband has been destroyed, then the
seizure of such liquor would become a doubtful matter. In such
cases the accused would be entitled to take advantage of such
doubt.
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15. Ext.P35 is stated to be the certification made by
the Magistrate concerned regarding the correctness of the articles
produced before him. It would be apposite to refer to Ext.P35
which reads thus -
" PROCEEDINGS OF THE JUDICIAL 1ST CLASS MAGISTRATE - I,
PALAKKAD.
Present:- .....................................
Judicial First Class Magistrate -I, Palakkad.
Crl. Justice- Crime Nos.21/04, 23/04, 1/06, 24/07, 28/07, 29/07,
26/08, 27/08 of Excise Range Office, Palakkad - disposal of
spirit seized-certification of inventory - orders issued -
Regarding.
-------------------------------------------------------------------------------
Ref :- Report dated 17-10-2008 of the Asst.Excise Commissioner
Palakkad.
Order No.6984/08 of Judicial First Class Magistrate - I,
Palakkad dated 18-11-2008.
------------------------------------------------------------------------------
I have physically verified the properties involved in
the following crime numbers of Excise Range Office,
Palakkad which produced before this court on 14-11-08 at 4
P.M. The Junior Superintendent and property section Clerk of
this court assisted me in verifying the properties and I certify
that.
The following numbers of sealed and labelled
plastic cans are there against the crime numbers noted below.
Sl. Cr.No Item No. No. of cans No.of cans No.of
No. . seized found empty cans
containing found
illicit spirit.
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4 24/07 199/07 30 30 -
The cans and spirit handed over to the Assistant Excise
Commissioner, Palakkad to conduct steps for auction.
Judl. First Class Magistrate,
Palakkad.
To
The Asst. Excise Commissioner, Palakkad.
Copy to:-
The Excise Range Officer, Palakkad."
16. As noticed earlier, in the instant case the
testimony of PW10 would show that 190 cans having a capacity
of 35 ltrs containing 32 ltrs each of rectified spirit had been
seized. The said cans were given numbers from 1 to 190 and
from cans bearing numbers 25, 75, 125 and 175, samples were
drawn. Thereafter, the sample bottles and all the 190 cans were
sealed and labelled. The sample bottles; the 4 cans from which
samples were taken as well as the remaining 186 cans containing
rectified spirit were produced before the jurisdictional Magistrate
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as per Ext.P28 property list which was received by the court on
26/06/2008. The samples were forwarded for chemical analysis
as per Ext.P29 forwarding note and Ext.P34 is the chemical
analysis report relating to the aforesaid samples. The inventory
that is alleged to have been prepared by the authorised officer is
not before this Court. Ext.P35 does not reveal the details of the
contraband articles that are alleged to have been inspected by the
learned magistrate. The contraband articles in eight different
crimes are stated to have been inspected together and Ext.P35
issued. Ext.P35 apparently and obviously is not in compliance
with the provisions contained in Section 53A of the Act.
17. Here it needs to be noted that substantial
quantity of rectified spirit had been seized. But due to the
omissions and commissions of the officials concerned, the culprits
will go scot-free. As there has neither been strict nor substantial
compliance of the provisions of Section 53A, Ext.P35 cannot be
treated as primary evidence as contemplated under sub-section (5)
of Section 53A. When the case of seizure itself fails or is
doubtful, the benefit of doubt will have to go to the accused
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persons. That being the position, the findings of the trial court
regarding the guilt of the accused persons are not tenable and so
are liable to be interfered with and hence I do so.
In the result, the appeals are allowed. The conviction and
sentence imposed against the appellants by the trial court by the
impugned judgment for the offence punishable under Section
55(a) of the Abkari Act is set aside. The accused persons are
acquitted under Section 235(1) Cr.P.C. They are set at liberty and
their bail bonds shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
