Partly allowed

Kunjan v. State of Kerala

Kerala HC13 Dec 2012Crl.Rev.Pet/738/2002

Case brief

AI extract

What is this about?

This court acquitted the appellant of the offence under Section 55(a) of the Abkari Act but confirmed conviction under Section 55(g). The court held mere possession without evidence of import, export, or transport does not attract Section 55(a), while evidence proved the wash contained sufficient alcohol for illicit distillation.

What did the court decide?

The petitioner was acquitted of the offence under Section 55(a) of the Abkari Act but the conviction and sentence under Section 55(g) were confirmed.

Kunjan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934

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Crl.Rev.Pet.No. 738 of 2002

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CRA.84/1999 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR CC.94/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VADAKKANCHERRY

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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KUNJAN, S/O. ANTHYALAN, HARIJAN COLONY, NEDUMBURA VILLAGE, THALAPPILLY TALUK.

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BY ADVS.SRI.P.M.MANOJ SRI.DILU JOSEPH

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA, EXCISE INSPECTOR, WADAKKANCHERY RANGE, THRISSUR.

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BY SRI.LIJU.V.STEPHEN. PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S. SIRI JAGAN, J.

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- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.738 of 2002

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- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13^th day of December, 2012

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O R D E R

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The petitioner is the accused in Calendar Case No.94/1997 before the Judicial Magistrate of the First Class, Wadakkancherry. He was prosecuted for offences punishable under Sections 55 (a) and 55 (g) of the Abkari Act. The prosecution case against the petitioner was that on 10.11.1996, at 1 p.m., when PW1 and party searched the house bearing No.VI/369 at Vallathole Nagar Panchayat, where the accused was residing, the accused was found in possession of 15 litres of wash fit for distillation of illicit arrack and 750 ml. of illicit arrack. The prosecution examined PWs 1 to 4 and marked Exhibits P1 to P5 as well as MOs 1 to 3. The petitioner did not adduce any evidence. After considering the evidence of the prosecution, the Magistrate found the petitioner guilty of the offences charged and sentenced him to undergo rigorous

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Crl. Rev. Petition No.738 of 2002

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imprisonment for one year and to pay a fine of Rs.25,000/with a default sentence of rigorous imprisonment for three months. The petitioner challenged the judgment of the Magistrate by filing Criminal Appeal No.84/1999 before the Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur. The Sessions Judge confirmed the conviction, but modified the sentence of fine to Rs.5,000/- while retaining the sentence of imprisonment. The default sentence was also reduced to rigorous imprisonment for a period of one month.

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The petitioner is challenging the judgments of the courts below.

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When the matter was taken up for hearing neither the petitioner nor the counsel for the petitioner was present in court. Therefore, I was constrained to consider the contentions of the petitioner on the basis of the grounds in the criminal revision petition. I have heard the learned Public Prosecutor also and perused the lower court judgments and the lower court records. One of the contentions raised by the petitioner is that the prosecution

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Crl. Rev. Petition No.738 of 2002

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has not complied with Section 100 (4) of the Cr.P.C. But PWs 2 & 3 were the witnesses contemplated under the said Section, who have been examined in court also. The fact that they have turned hostile cannot go to hold that the prosecution has not complied with Section 100 (4) of the Cr.P.C. Therefore, I do not find any merit in the said contention. Another contention raised is that the lower court failed to appreciate the contention of the petitioner that PWs 1 & 4 had previous enmity with the accused and therefore crime was registered falsely. But the petitioner has not led any evidence to prove the same. Therefore, I cannot accept the contention of the petitioner in that regard also. The petitioner raises yet another contention that the marking of Ext.P5 search memo is illegal insofar as it is only a carbon copy and the original has not been produced. The original was missing from the court records is the reason given by the lower court. Apart from that, the lower courts have given convincing reason as to why Ext.P5 could be accepted in evidence. Therefore, I do not find any merit in that contention also. Another contention of the

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Crl. Rev. Petition No.738 of 2002

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petitioner is that the excise officials threatened the accused to put his signature in Ext.P3 search memo. The petitioner has not proved the same also by adducing appropriate evidence. The last contention that the evidence adduced is not sufficient to convict the petitioner. But on going through the evidence, I am satisfied that the evidence of PWs 1 & 4 conclusively proves the guilt of the petitioner beyond any reasonable doubt. Although the petitioner has crossexamined them, he could not discredit their evidence to any extent. The prosecution has proved that on getting information that the petitioner has stored wash in his house for illicit manufacturing of liquor the excise officials searched the house of the petitioner and seized 15 litres of wash and 750 m.l. of illicit arrack. The wash and illicit arrack were sent for chemical analysis and it was found that the wash contained 0.79% ethyl alcohol and arrack contained 11.39% of ethyl alcohol by volume. As such, the prosecution has succeeded in proving the offence punishable under Section 55 (g) against the petitioner.

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But I am not satisfied that the petitioner is guilty

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Crl. Rev. Petition No.738 of 2002

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of the offence under Section 55 (a). Two Division Benches of

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this Court has in Surendran v. Excise Inspector, [2004 (1) KLT 404] and in Cr.R.P.No.220 of 2001 held that mere possession of illicit liquor will not attract the offence under Section 55 (a), unless it is in the course of import, export transport and transit. Here, the prosecution case itself is that the petitioner was found in possession of wash and illicit liquor at his house. Therefore, the prosecution has not proved the ingredients of the offence under Section 55 (a). In the above circumstances, the Criminal Revision Petition is disposed of as follows:

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The conviction and sentence under Section 55 (g) is confirmed. The petitioner is acquitted of the offence under Section 55 (a) of the Abkari Act.

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Sd/S. SIRI JAGAN JUDGE //True copy//

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P.A. TO JUDGE

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shg/

Kunjan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kunjan v. State of Kerala

Case brief

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What did the court decide?

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