Allowed

Sasidharan v. State of Kerala,Rep.by Public Prosecutor

Kerala HC7 Nov 2013CRL.A/1518/2005

Case brief

AI extract

What is this about?

In possession of illicit brandy without proof of interstate sale, the Kerala High Court held the conviction under section 55(a) of the Abkari Act unsustainable. The appellant was convicted under section 63 and sentenced to a fine of Rs. 5,000.

What did the court decide?

Conviction under section 55(a) of the Kerala Abkari Act set aside; convicted under section 63; fine of Rs. 5,000 imposed.

Sasidharan Vs State of Kerala,Rep.by Public Prosecutor — Narcotics (NDPS) | Kerala HC (2013)

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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 V.K.MOHANAN

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THURSDAY, THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935

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CRL.A.No. 1518 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 440/2003 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA, DATED 06-08-2004 (CP 27/2001 of J.M.F.C., KATTAPPANA)

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APPELLANT(S)/ACCUSED::

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SASIDHARAN, S/O. APPUKUTTAN, PANACHUVATTIL HOUSE, AYYAPPANKOVIL VILLAGE VELLILAMKANDOM KARA.

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BY ADV.SRI.JOICE GEORGE

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RESPONDENT(S)/COMPLAINANT::

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.1518 of 2005

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Dated this the 7^th day of November, 2013.

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J U D G M E N T

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The appellant is the sole accused in S.C.No.440/03

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of the court of Additional Sessions Judge (Ad hoc)-II, Thodupuzha and in this appeal he challenges the judgment dated 6.8.2005 in the above Sessions case as he is convicted and sentenced for the offence under section 55 (a) of the Abkari Act.

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The prosecution allegation is that at about 7.15 p.m. on 21.1.2001, the accused was found in possession of 27 bottles of illicit brandy in shop bearing No.XI/566 of the Kanjiyar Panchayat and thereby committed the offence punishable under sections 55(a) and (h) of the Abkari Act. On the above allegation, Crime No.42/01 was registered in the Kattappana Police Station and on completing the investigation, report was filed before the court of Judicial

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Crl.A.No.1518 of 2005

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First Class Magistrate-Kattappana and the learned Magistrate subsequently committed the case to the Sessions court, wherein S.C.No.440/03 was instituted and eventually the case was made over to the present trial court. On the appearance of the accused, a formal charge was framed against him for the offence punishable under section 55(a) of the Abkari Act. But the accused denied the charge and pleaded not guilty, pursuant to which, prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P9 documents. Though no documentary evidence adduced from the side of the defence, DW1 was examined. M.Os.1 to 6 were produced and identified as material objects. The trial court finally found that the accused committed the offence punishable under section 55(a) and accordingly he is found guilty and convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of `1 lakh and in default he is directed to undergo

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Crl.A.No.1518 of 2005

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rigorous imprisonment for 3 more months. It is the above finding and order of conviction and sentence that are challenged in this appeal at the instance of the accused in the above sessions case.

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I have heard Adv.Sri.Joice George, learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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To prove the detection of the crime, the seizure of the contraband article and the arrest of the appellant/ accused, the entire prosecution case is rested upon the evidence of PW1, the then Sub Inspector of Police attached to Kattappana Police Station, who detected the crime. According to PW1, while he was on patrol duty, on 20.1.2001 in the evening, he got reliable information that the accused was selling illicit brandy in his shop near Vellilamkandam City. According to him, after preparing search memorandum, he proceeded to the shop of the appellant/accused and the accused was in the shop when

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Crl.A.No.1518 of 2005

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he reached there and he had seen 180 ml. bottle containing some liquid, two glasses, a plastic mug and a bucket inside the shop and the appellant/accused was sitting on a chair. PW1 has satisfied that the liquid contained in the bottle was liquor. According to PW1, a card board box was found beneath the table, which contained 26 bottles of labelled 'AJ Fine brandy' and he opened one of the bottles and examined, and the content of the bottle was realised as brandy. According to me, another bucket was also found and accordingly the appellant/accused was arrested and the sample of the liquor was taken and sealed. The remaining liquor bottles were also taken into custody under Ext.P1 mahazar. He identified M.O.1 series as illicit brandy seized from the shop of the accused, M.O.2 as the bucket found beneath the table, M.O.3 series are the glasses found on the bottle, M.O.4 is the candle and the vessel in which the candle was fixed, M.Os.5 and 6 are the mugs found in the shop. According to PW1, after the seizure and the

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Crl.A.No.1518 of 2005

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arrest of the appellant/accused, he returned to the Police Station wherein he registered Crime No.42/01 in Kattappana Police Station and he identified that Ext.P2 is the FIR in the above crime. When PW1 was examined, Ext.P1 mahazar, Ext.P2 FIR, Ext.P2(a) FI Statement, Ext.P3 property list, Ext.P4 forwarding note, Ext.P5 arrest memo were identified and marked through him. Though Pws.2 and 3-independent witnesses were examined to prove the seizure of the contraband article and arrest of the appellant/accused, they turned hostile. PW4 is the Investigating Officer who conducted the investigation and finally laid the charge. When PW4 was examined, Ext.P6 chemical analysis report and Ext.P7 ownership certificate of the building are marked through him. PW5 is the then Secretary of Kanjiyar grama panchayat and Ext.P8 ownership certificate is marked through him.

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Though no document is produced from the side of

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the defence, DW1 was examined from their side and at that

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Crl.A.No.1518 of 2005

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time, the prosecution has got marked Ext.P9 list. It is on the basis of the above evidence and materials, the trial court found that the accused is guilty under section 55(a) of the Abkari Act and accordingly convicted him.

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Learned counsel for the appellant advanced several contentions challenging the prosecution case. Having regard to the facts and circumstances involved in the case, according to me, this Court need no go into the merits of the contentions advanced by the learned counsel for the appellant about the defect occurred with respect to the seizure of the contraband article and arrest of the appellant/accused etc. In the present case, even according to the allegation of the prosecution, what PW1 was seized from the possession of the appellant/accused is only 27 bottles of “AJ Fine brandy”, each bottle having the capacity of 180 ml. So, the total quantity of liquor will only come to 4.320 ltrs. The prosecution has no allegation or case against the appellant/accused that the contraband article

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Crl.A.No.1518 of 2005

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allegedly seized from the possession of the appellant/ accused was imported to the State of Kerala from outside or no tax was paid with respect to the above liquor. Even the prosecution has no case that the above liquor is not saleable in the State of Kerala and it is meant for exclusive sale in any other State. It is equally important to note that even though the prosecution raised an allegation that the appellant/accused kept the above liquor for sale, but that case of the prosecution was rejected by the trial court and there is no finding that the appellant/accused has committed the offence under section 55(h) of the Kerala Abkari Act. As long as there is no allegation and that it was not proved that the liquor which was seized from the possession of the appellant/accused was not brought from outside, according to me, Section 55(a) of the Abkari Act is not attracted. The position is now well settled in view of the decisions in Mohanan Vs. State of Kerala (2007(1) KHC 752) , Narayanan Nair Vs. State of Kerala (2011

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(3) KLT 722) and Ravi Vs. State of Kerala (2011(3)

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KLT 353) . In the light of the above facts and the decisions cited supra, the finding arrived into by the court below that the appellant/accused has committed offence punishable under section 55(a) is not factually and legally sustainable.

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But the fact revealed in the light of the evidence on record is that the appellant/accused was found in possession of 27 bottles of “AJ Fine brandy” which were having the capacity of 180 ml. each and the total quantity would come to 4.320 ltrs. If that be so, particularly in the light of the decision of a Division Bench of this court in 2007(1) KHC 752 , the only offence attracted is under section 63 of the Abkari Act. So, according to me, the appellant is liable to be convicted for the offence punishable under section 63 of the Abkari Act.

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Accordingly, the findings of the court below and the conviction recorded by it against the appellant for the offence under section 55(a) are set aside and the appellant

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is convicted for the offence under section 63 of the Kerala Abkari Act. Accordingly, by adopting a lenient view, the appellant is sentenced to pay a fine of `5,000/- and in default, he is directed to undergo simple imprisonment for 3 months.

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In the result, this appeal is disposed of setting aside the finding of the court below as per the judgment dated 6.8.2005 in S.C.No.440/03 of the court of Additional Sessions Judge (Ad hoc)-II, Thodupuzha, and accordingly the conviction recorded against the appellant/accused under section 55(a) is set aside and in view of the foregone discussion and findings, the appellant is convicted under section 63 of the Abkari Act and he is sentenced to pay a fine of `5,000/- and in default, he is directed to undergo simple imprisonment for 3 months.

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As the appellant has already deposited a sum of `10,000/- in the trial court in terms of the order dated 1.9.2005 in Crl.M.A.No.14328/05 and as per the order

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dated 30.9.2005 in Crl.M.A.No.15858/05, by which the time was extended for deposit of the amount, the trial court is directed to adjust a sum of 5,000/- out of the amount already deposited as per the above orders, towards the payment of fine imposed by this Court and towards realisation of the fine amount, and the remaining sum of 5,000/- shall be released to the appellant forthwith on moving an application in this regard.

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Appeal is disposed of accordingly.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Sasidharan v. State of Kerala,Rep.by Public Prosecutor

Case brief

What is this about?

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Sasidharan v. State of Kerala,Rep.by Public Prosecutor

Case brief

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