Allowed

Nellikunnel Kutty Sali v. Excise Inspector Thalassery

Kerala HC13 Feb 2013CRL.A/620/2005

Case brief

AI extract

What is this about?

Single Bench held that evidence of seizure of Indian made foreign liquor was insufficient to attract Section 55(a) read with Division Bench precedent. Conviction set aside as trial court failed to properly appreciate defence regarding injury to accused during alleged altercation.

What did the court decide?

Conviction set aside and appellants acquitted of all charges and set at liberty.

Nellikunnel Kutty Sali Vs Excise Inspector Thalassery — Criminal Trial and Appeal | 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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WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934

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CRL.A.No. 620 of 2005 (F)

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AGAINST THE ORDER/JUDGMENT IN SC.652/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY DATED 15-03-2005

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APPELLANTS/ACCUSED:

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NELLIKKUNNEL KUTTY SALI, S/O.KUTTY, DRIVER, AGED 38,

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NELLIKKUNNEL HOUSE, ALAKODE AMSOM, ARANGAM DESOM, THALIPARAMBA.

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RAMAN PILLA ANIL,

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S/O.RAMAN PILLA, AGED 33, COOLIE, AJI NIVAS, ALAKODE VILLAGE, ARANGAM DESOM, TALIPARAMBA.

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BY ADVS.SRI.K.C.PETER

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SRI.S.KANNAN(STATE BRIEF)

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RESPONDENT:COMPLAINANT :

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STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, THALASSERY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.620 of 2005

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Dated this the 13^th day of February, 2013

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JUDGMENT

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The appellants are the accused in S.C.No.652 of 2004 of the court of the Additional Sessions Judge, Ad hoc-II, Thalassery and in this appeal they are challenging the conviction and sentence imposed on them for the offence under Section 55(a) of the Kerala Abkari Act and Rule 9 of Foreign Liquor Rules.

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The prosecution case is that on 29/08/2000 at about 8.20 p.m. PW.1 seized contraband article from a jeep bearing Registration No.KL/6/8124 driven by the first accused along with the second accused, near Eranholi old bridge and the road leading to Moozhikkara and on the junction which turns to the burial ground and thereby the accused have committed the offence punishable under Section 55(a) of the Kerala Abkari Act. C.R.No.19 of 2006 was registered in the Excise Range,

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Crl.A.No.620/2005

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Thalassery on the basis of above allegation and on completing the investigation charge was laid before the committal court whereupon C.P.No.47 of 2003 was instituted.

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The learned Magistrate by his proceedings dated 17/11/2003 in C.P.No.47 of 2003 committed the case to the Sessions Court where S.C.No.652 of 2004 is instituted and made over to the present court for trial and disposal. When the accused appeared, a formal charge was framed for the said offence, after hearing the prosecution as well as the defence and when the said charge was read over and explained to the accused they denied the same and pleaded not guilty, consequently the prosecution adduced its evidence consisting of the oral evidence of PWs.1 to 4 and Exts.P1 to P7 documents. One witness that is DW.1 was examined from the side of the defence. Finally the trial court has found that there is clear evidence that the accused were transporting Indian made foreign liquor which is prohibited to be sold in Kerala State without any valid permit and the offence

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Crl.A.No.620/2005

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committed by the accused comes under Section 55(a) of the Kerala Abkari Act and consequently the accused are convicted for the offence under Section 55(a) of the Kerala Abkari Act. On such conviction each of the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rupees One lakh each and in default they are directed to undergo simple imprisonment for three months each. Set off is allowed under Section 428 of Cr.P.C. It is the above finding, order of conviction and sentence that are challenged in this appeal.

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As correctly stated in paragraph 2 of the judgment, the prosecution case is that the accused were found carrying 25.920 litres of Indian made foreign liquor which was detected by PW.1. In order to substantiate the above case the prosecution has examined four witnesses out of which PW.1 is the then preventive officer attached to Excise Range, Thalassery. When PW.1 was examined, he has deposed that on 29/08/2000 a raid was conducted in the presence of Excise Inspector. According to PW.1,

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when the Excise officers were going through Moozhikkara Road and when they reached the junction which turns to the burial ground, the incident occurred. According to PW.1, the then Excise Inspector was checking all the vehicles passing through the road and then a jeep bearing Registration No.KL/6/8124 attempted to take its reverse. Suddenly, the excise party stopped the vehicle and searched inside it and found that 48 bottles of 180 ml. Indian made foreign liquor in three cases had been kept beneath the seat. Total 144 bottles had been kept in three cases and the same were branded as No.1 one Mac Dowe1l Brandy for sale in Pondichery. According to PW1, the liquid has been identified by tasting and smelling. According to PW.1, as there was no proper explanation for the possession of the contraband article, the accused were arrested on the spot along with the contraband article and the contraband articles were seized. When PW.1 was examined, he had deposed in terms of the prosecution allegation and he had also deposed the steps taken towards the seizure of the

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contraband article. Thus, while PW.1 was examined, Ext.P1 search memo, Ext.P2 series with respect to arrest memo of A1 and A2, Ext.P3 seizure mahazar and Ext.P4 crime and occurrence report were marked through PW.1.

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PW.2 is the sole independent witness who was examined in this case but he had turned hostile to the prosecution.

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PW.3 is the owner of the vehicle in question. According to him, he has no permanent driver to ply the vehicle and in the present case the vehicle was given to A1 for the purpose of A2 to visit his wife house.

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PW.4 is the then Excise Inspector attached to the Thalassery Excise Range. He is the officer who undertook the investigation and when PW.4 was examined Ext.P5 site plan, Ext.P6 forwarding note and Ext.P7 chemical analysis report were marked through him.

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While denying the entire prosecution allegation,

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the specific defence taken by the accused is that, while they were travelling in an autorickshaw driven by DW.1,

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the Excise party stopped their autorickshaw and started to conduct their body search, which was objected by the accused, which resulted in an altercation between the accused and the excise party and in that incident A1 sustained injury. It is the further case of the defence that no contraband article is recovered from their possession but they are implicated in the present case falsely to cover the incident by which the excise parties attacked A1 who sustained injury. To prove the above case of defence the defence has already been examined DW.1.

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After considering the above evidence of the prosecution as well as defence on record, the trial court found that the accused are guilty for the offence under Section 55(a) of the Kerala Abkari Act and accordingly they are convicted and sentenced.

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Mr.Kannnan, learned counsel for the appellants vehemently submitted that the prosecution evidences are not free of doubt and especially when the prosecution failed to adduce any independent evidence, the trial court ought not to have approved the prosecution case and

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convicted the appellant. The learned counsel strenuously submitted that in the present case based upon the evidence and materials on record the accused has taken a particular defence which was not properly considered and appreciated by the trial court. It is also the submission of the learned counsel that, with respect to the exact time of the arrest of the accused, there is serious discrepancy in the prosecution case itself. To substantiate the above contention, the learned counsel has pointed out that, in Ext.P2 arrest memo the time of arrest is shown as7.45 p.m. though Ext.P3 seizure mahzar it has stated that the seizure mahazar was prepared at 8.20 p.m. It is also the submission of the counsel that, though PW.1 has claimed that he prepared Ext.P4 mahazar, he is shown only as a witness or as an attestor. It is another contention raised by the counsel for the appellant, that the prosecution has no case that the appellants have transported or imported the contraband article from outside the State of Kerala and while importing the same, they were found in possession of the

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contraband article. In order to substantiate the above ground, the learned counsel took me through the court charge wherein there is no allegation or charge that the accused were found transporting the contraband article in question. Thus, according to the learned, counsel the judgment of the trial court is liable to be set aside especially in the light of the decision of the Division Bench of this Court reported in Mohanan Vs. State of Kerala [2007(1)KHC page 752], and decision of the learned Single Judge reported in Narayanan Nair Vs. State of Kerala [2011 (3) KLT 722].

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On the other hand, the learned Public Prosecutor relying upon the decision of this Court reported in Biju Vs. State of Kerala [2012(4) KLJ 256], and a recent decision reported in Ammed Vs. State of Kerala [2013(1) ILR page 421] submitted that offence against the appellants under Section 55(a) of the Abkari Act is attracted since the contraband articles were seized from their possession while they were transporting the same. Thus according to the learned Public Prosecutor

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no interference is called for with respect to the findings of the court below.

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I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have also perused the judgment and scrutinized the evidence and materials on record.

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In the light of the rival contentions and evidence and materials on record and in view of the findings of the court below the question to be considered is whether the trial court is correct and justified in its finding and convicting the accused for the offence under Section 55(a) of the Kerala Abkari Act and whether the accused has prejudiced by the charge framed by the court against them.

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At the out set, it is to be noted that raid was conducted and crime was detected in the present case by the then Excise Inspector of Thalassery Excise Range who is no more. So the prosecution is constrained to examine PW.1, and rely upon his evidence, who was then working

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as the preventive officer of the Excise Range, Thalassery and who accompanied the then Excise Inspector in the detection of the crime to substantiate its allegation against the accused. I have repeatedly gone through the deposition of PW.1. Though PW.1 has stated that the Inspector has got information, about the content of such information there is no whisper. Further, he deposed that, while inspecting the vehicles, vehicle bearing Registration No.KL/6/8124 had taken reverse on seeing the excise party and then the excise party prevented the vehicle from taking any further and on examination of the vehicle, saw the contraband article beneath the back seat. Thereafter PW.1 deposed about the details regarding the steps taken towards the seizure. So, in the chief examination of PW.1 absolutely there is no whisper to the effect that the jeep was intercepted and the accused were arrested along with contraband article, while they importing the same from outside the State. A Division Bench of this Court in Mohanan Vs. State of Kerala 2007 (1)KHC 752, has held while answering to a

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reference made to it that the 'transports, transits or possess' coming after the words 'imports or exports' in Section 55(a) of the Kerala Abkari Act has to be read in ejusdem generis to the words 'imports or exports' and it is further held that Section 55(a) of the Kerala Abkari Act is not applicable to all kinds of transportation of liquor and the same is applicable for illegal import or transport or in possession while importing. In the light of the above Division Bench decision, according to me, this Court need not follow the decision in [2012(4)KLJ 256] and [2013(1) ILR 421] cited by the learned Public Prosecutor. So, the evidence of PW.1 is not sufficient to attract the offence as contemplated under Section 55(a) of the Kerala Abkari Act particularly in the light of the above decision of this Court.

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In this juncture, it is relevant to note that in the court charge also there is no allegation against the appellants that they found importing the contraband article from outside the State. The court charge dated 17/12/2004 reads:

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“1. Nellikunnel Sali, S/o.Kutty, 39 years, Agriculturist, Arangam desom, Alakode.

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Anil, S/o.Ramanpillai, Aji Nivas, 34 years, business, Arangam desom, Alakode village.

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I, Smt.Annie John, B.Sc., LL.B., Addl. Sessions Judge (Ad hoc-II), Thalassery do hereby charge you the above named accused as follows:-

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That, on 29/8/2000, at 8.20 p.m., you, the accused were found in possession of 25.920 litres of Indian made foreign liquor in KL-6/8124 jeep near at Eranholi old bridge, Vayalalam desom, Thiruvangad without any valid documents.” (underline supplied)

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Though the charge was only to the above effect, the learned Judge, while disposing the above Sessions Case found that “the reply of accused Nos.1 and 2 are not satisfactory and there is clear evidence before this court to prove that the accused were transporting Indian made foreign liquor which is prohibited to be sold in Kerala State without any valid permit and (Emphasis supplied) the offence done by the accused is come under Section 55 (a) of the Kerala Abkari Act.” According to me, the above finding of the court below without any proper and cogent

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evidence and also not in terms of the charge framed against the accused and therefore the accused has very much prejudiced resulting in miscarriage of justice. Therefore, the finding of the court below, that the accused has committed the offence under Section 55(a) of the Kerala Abkari Act, is not legally and factually sustainable.

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It is also relevant to note that the accused has taken a specific defence to the effect that they were arrested while they were going in an autorickshaw driven by DW.1, since they objected to their body search by the then Excise Inspector attached to Thalassery Excise Range and in this connection there was an altercation during which the first accused sustained injury. As correctly submitted by the learned counsel for the appellant, the learned Judge of the trial court has not properly considered the above case of the defence. The learned Public Prosecutor submitted that the prosecution has not suppressed the fact that A1 sustained injury since the said fact has already been stated in Ext.P3 mahazar.

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According to me, merely stating about the injury sustained by A1 it cannot be said that the prosecution has discharged its duty. The raid was allegedly conducted under the leadership of the then Excise Inspector, Thalassery and PW.1 was only a member of such raiding party. In this juncture, it is relevant to note that, though PW.1 was examined from the side of the prosecution, during his chief examination, he had stated nothing about the incident under which A1 sustained injury. Only when cross-examined he made lame excuse to cover up the incident by which A1 sustained injury. In this case it is relevant to note that, even according to the prosecution allegation, while the excise party was conducting vehicle inspection, the jeep which driven by A1 came to the spot and on seeing the excise party the jeep was taken reverse so as to evade from the spot which was prevented by the excise party. So there is no proper and convincing explanation, as to how A1 sustained injury on his neck. In the absence of any convincing and acceptable explanation and the circumstances under which A1 sustained injury,

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it cannot be said that the prosecution has properly discharged its duty and proved its case beyond reasonable doubt. Therefore, the said failure on the part of the prosecution generate doubt in the mind of the court and definitely same goes in favour of the accused and therefore the defence is entitled to get the benefit of doubt. Therefore, on that ground also the conviction recorded by the trial court cannot be approved. Accordingly, I set aside the conviction recorded by the court below against the appellants.

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In the result, this appeal is allowed setting aside the judgment dated 15/03/2005 in S.C.No.652 of 2004 of the court of the Additional Sessions Judge (Ad hoc-II), Thalassery and acquitting the appellants/accused of all the charges levelled against them and the bail bond, if any, executed by them are cancelled and they are set at liberty.

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V.K.MOHANAN, JUDGE

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skj

Nellikunnel Kutty Sali v. Excise Inspector Thalassery

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Nellikunnel Kutty Sali v. Excise Inspector Thalassery

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