High Court of Kerala set aside conviction and sentenced under Section 55(g) of Abkari Act, holding mere possession of wash for illicit liquor manufacture without proof of intent was insufficient for conviction.
Conviction and sentence set aside; accused acquitted; bail cancelled and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 26TH DAY OF NOVEMBER 2015/5TH AGRAHAYANA, 1937
CRL.A.No. 2 of 2009 (A)
AGAINST THE JUDGMENT IN SC 216/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA DATED 12-12-2008
APPELLANT/ACCUSED:
V.K.SANKARAN, S/O. KEYAVU, ONIYIL VEEDU, KOTTUKULAM, MUNDAKUTTY, KUPPADITHARA.
BY ADV. SRI.S.M.PRASANTH
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. LILLY LESLIE, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.2 OF 2009
Dated this the 26th day of November, 2015.
J U D G M E N T
The accused in this case was prosecuted for the offence punishable under Section 55(g) of Abkari Act. He was found guilty and was therefore convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default clause of rigorous imprisonment for six months. Set off as per law was allowed.
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had with him. The vessel had a capacity of 18 liters and they found 15 liters of liquid in it. The liquid was then stirred and by taste and smell, it was found that it was wash intended to make arrack. The aluminum vessel had a capacity of 45 liters and that too contained wash. They also found a tin container of 18 liters capacity and that also contained wash. They then found an aluminum vessel of 15 liters capacity with a wooden disk inside it. According to PW1, the accused is said to have admitted that all these articles belonged to him. Pointing out that what he had done is illegal act, Ext.P1 arrest memo was prepared and he was arrested. From the wash so seized, 500ml was taken in a bottle and it was sealed and labeled. The label contained the gist of the case and also both the labels i.e. on the sample and also on the balance contraband article, signature of PW1, witnesses and accused were affixed. The excess wash was destroyed at the place of incident itself. The mahazar prepared at the place of incident is Ext.P2. On the same day itself, accused, articles seized and the records were handed over to the Kalpetta Range Office. The seal affixed on the sample was affixed on the
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forwarding note also.
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Section 232 Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence.
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that sample which reached the chemical analysis laboratory is the sample taken from the contraband seized from the possession of
accused. There are several utensils, according to the prosecution, which contained liquid and it was incumbent on the part of the officer to take separate samples from each of the utensil and seal and label the same. Admittedly, in the case on hand, PW1 has clearly stated that he has taken only one sample. He is unable to mention from where the sample was taken. This lacuna is fatal to the prosecution and therefore the appellant could not have been found guilty. Alternatively, it is contended that even assuming that wash is recovered from the possession of accused, unless it is shown that it was intended for manufacturing illicit liquor, he could not be fastened with liability. For the said proposition, learned counsel relied on the decision in Santhosh vs. State of Kerala (2007 (1) KHC 1032). Learned counsel then went on to point out that the prosecution relied on the alleged admission made by the accused that the articles belonged to him. Even assuming it is so, according to the learned counsel, that amounts to a confession and it is
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inadmissible in evidence since PW1 is an Abkari Officer and he has the power of a Police Officer. For the said proposition, learned counsel relied on the decision in Joseph vs. State of Kerala (2009 (4) KHC 537). Therefore, it is pointed out that the fact that other utensils were recovered from beneath the bridge and the accused is attributed with possession of the same cannot help the prosecution. On the basis of the above contentions, it is pointed out that the court below has grievously erred in convicting the accused.
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analysed the evidence and has come to the conclusion that offence under Section 55(g) of Abkari Act is made out. It is contended that no grounds are made out to interfere with the conviction and sentence.
PWs 1 and 2. Among them, PW1 is the detecting officer and he was functioning as Preventive Officer at the relevant time. He would say that he along with PW2 who was a Guard then with a few other officers had set out for routine patrol duty and when they reached the place of incident, they happened to see the accused carrying a red pot. PWs 1 and 2 would say that seeing the Excise Officers, he became nervous and tried to hide himself
which caused suspicion in the mind of officers. He was intercepted and the pot was seized and examined. It was seen to contain a liquid. PW1 would say that he, by taste and smell, recognised it to be wash. Both PWs 1 and 2 do say that sample was taken by PW1 from the pot and had sealed and labeled the same. They also say that thereafter they returned to the Range Office and handed over the articles, accused and documents to
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the then Station House Officer.
“15. ......... In the case of a non-police officer, he does not, therefore, have the authority to file a police report under Section 173(2) CrPC. Until the amendment of Section 50 of the Abkari Act, all abkari officers were authorised to file only complaints
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and cognizance of the offences under the Abkari Act was being taken on such complaints. But after the amendment of Section 50, Abkari Officers can only file a final report in accordance with Section 173(2) CrPC thereby transforming Abkari Officers also to the status of police officers. With effect from 03/06/1997 in all prosecutions under the Abkari Act, Abkari Officers are filing police reports (chargesheets) as provided under Section 173(2) CrPC. Hence any confession made to an abkari officer after 03/06/1997 will be deemed to be a confession made to a police officer within the meaning of Section 25 of the Evidence Act and will stand interdicted by the said Section. If so, the confession made by the appellant to PW1 Excise Inspector cannot be relied on as an incriminating piece of evidence”.
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is from an open place and it is inconceivable that a person who is engaged in distillation in a colony will keep his utensils in an open place which is easily accessible for anybody. The attribution of possession of utensils therefore to the appellant cannot be countenanced. Finally, even if the prosecution case is taken as true, question arises is whether that is sufficient to attract the offence under Section 55(g) of Abkari Act. It will be useful at this point of time to refer to the provision as such. Section 55(g) reads as follows:
Section 55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act
(g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug”.
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manufacturing liquor other than toddy. Therefore there is an element of mens ria involved in the case. It is not sufficient for the prosecution to show that the commodities which could be used for manufacture of liquor were in possession of accused. They must further go to show that the accused was in possession of the same with the intention of using it for manufacturing liquor. In the decision in Santhosh vs. State of Kerala (2007 (1) KHC 1032), in fact, this issued was gone into and this Court held as follows:
“11. In short, there is no semblance of specific allegation which can indicate that the possession of the articles in question was for the purpose of manufacturing liquor. Possession simpliciter of articles which can be used for the purpose of manufacturing liquor also cannot be in the absence of cogent and probative indications be assumed to be possession for the purpose of manufacturing illicit liquor as to justify indictment under Section 55(g) of the Abkari Act. I am, in these circumstances, persuaded to agree that this is an eminently fit case where premature termination of the proceedings by invocation of the extraordinary inherent jurisdiction under Section 482 of the CrPC shall be justified. Lest, there be any confusion and to disabuse any
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such incorrect impression which may be carried, I make it clear that it is not the law that possession of such materials by itself will not amount to an offence under Section 55(g) of the Abkari Act. The crucial question is whether there is satisfactory allegations or materials to show that such possession was for the purpose of manufacturing liquor. I choose to invoke the jurisdiction under Section 482 of the CrPC in this case for the crucial reason that there is no worthwhile allegation or circumstances to indicate or suggest that the possession of the articles in question was for the purpose of manufacturing liquor”.
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was intended for manufacturing of liquor. There is no evidence at all to show that he was involved in actual manufacture of liquor. Further, it is significant to notice that the allegation is that he used to manufacture liquor in a colony far away from the bridge from where the article was seized. There was no attempt from the side of the prosecution to prove that he, in the colony, used to be engaged in manufacture of liquor so as to warrant a conclusion that wash which was in possession of accused and which was detected by the Excise Officers was kept for the purpose of manufacture of liquor. If it was established that articles were recovered either from his house or from the place where he has access, probably, one could have assumed that possession of wash was for the purpose of manufacture of liquor. Unfortunately for the prosecution, there is no such evidence in this case at all.
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For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
3 issues framed by the court
Whether mere possession of wash intended for arrack without proof of intent to manufacture constitutes offence under Section 55(g) of Abkari Act
Whether confession made to Excise Officer dopo 3.06.1997 is admissible evidence as such officer became equivalent to Police Officer
Whether conviction and sentence under Section 55(g) of Abkari Act can stand when intent to manufacture is not established
Colour shows how this judgement treated each authority
Santhosh vs State of KeralaFollowed¶69
Santhosh vs State of Kerala (2007 (1) KHC 1032)
Joseph vs State of KeralaDistinguished¶54
Joseph vs State of Kerala (2009 (4) KHC 537)
1 provisions across 1 enactments
V.K.SANKARAN
STATE OF KERALA
PBHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
PBHAVADASAN
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