Partly allowed

T.Ajayan @ Gopi v. State of Kerala

Kerala HC24 Feb 2016CRL.A/1343/2005

Case brief

AI extract

What is this about?

High Court of Kerala, in a criminal appeal, set aside conviction under Section 58 of the Kerala Abkari Act for possession of arrack. It convicted the appellant under Section 64(A) due to lack of boundary fencing, holding the owner responsible for securing the property.

What did the court decide?

Conviction under Sec. 58 set aside. Appellant convicted under Sec. 64(A) and sentenced to fine of Rs. 25,000/- or one month imprisonment.

T.Ajayan @ Gopi Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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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 P.D.RAJAN

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WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937

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CRL.A.NO. 1343 OF 2005 ( )

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AGAINST THE JUDGMENT IN SC NO.30/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA DATED 15-07-2005

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APPELLANT(S)/ACCUSED:

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T.AJAYAN @ GOPI, S/O. RAMAN, AGED 46, RESIDING AT VALLUVADY, WAYANAD DISTRICT.

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BY ADV. SRI.K.C.ELDHO

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RESPONDENT(S)/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SRI.N. SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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Crl. Appeal No.1343 of 2005

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---------------------------------Dated this the 24^th day of February, 2016

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J U D G M E N T

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This appeal is preferred against the conviction

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and sentence in S.C. No.30 of 2005 on the file of the Additional Sessions Judge (Adhoc) II, Kalpetta under Sec.58 of the Kerala Abkari Act. The charge against the appellant is that, on 02.09.2003 at about 12.55 noon, the Sub Inspector of Police, Sulthan Bathery detected 750 m.l. of arrack and a glass from the property of the appellant. He seized the contraband articles and registered the case. After completing investigation, the Additional Sub Inspector, Sulthan Bathery, laid charge before the Judicial First Class Magistrate Court-I, Sulthan Bathery. From there, the case was committed to Sessions Court, Kalpetta. Subsequently, it was made over to Additional Sessions Judge (Adhoc)II.

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During trial, prosecution examined PW1 to

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PW7 and marked Exts.P1 to P8. MO1 was admitted as material object. The incriminating circumstances brought

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Crl. Appeal No.1343 of 2005 2

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out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge, convicted the accused under Sec.58 of the Kerala Abkari Act and sentenced him to simple imprisonment for one year and fine of Rs.1,00,000/-, in default of payment of fine, simple imprisonment for four months. Being aggrieved by that, the accused preferred this appeal.

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Learned counsel appearing for the appellant contended that there is no evidence to prove the possession of the property. The arrack was seized from an open place. Therefore, independent evidence is necessary. It is contended that the detecting officer violated the provisions of the special statute. When there is non-compliance of the provisions of the Kerala Abkari Act, it is presumed that the accused is entitled to get the benefit of doubt.

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Learned Public Prosecutor admitted that the arrack was seized from an open place.

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The detection of arrack was deposed by PW6, the Sub Inspector of Police, Sulthan Bathery, who was

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Crl. Appeal No.1343 of 2005 3

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examined as PW6 in the trial court. The evidence of PW6 shows that on 02.09.2003 at 12.55 noon, while he was conducting patrol duty and reached at Valluvadi, he got information that the appellant was keeping arrack in the backside of his shop. Immediately, he arrived at the place of occurrence. In the presence of independent witness, he conducted a search on the back side of the shop and detected 750 m.l. of arrack in a bottle. He also found MO1 glass near to it. He took 180 m.l. as sample and the balance arrack and the sample were sealed at the place of occurrence. He also affixed a label in MO1 and also in the sample. Ext.P1 is the seizure mahazar. The appellant was arrested. PW6 obtained drunkenness certificate of the appellant. Reaching at the Police station, he registered a crime. Ext.P5 is the First Information Report. The accused was produced before the court on the next day. The contraband articles were also produced before the court as per Ext.P6 property list. In cross examination, PW6 admitted that MO1 was seized from an open place. There is no fencing to that property.

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PW2 attested Ext.P2 mahazar. He admitted

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Crl. Appeal No.1343 of 2005 4

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that a pathway is going to the Siva Temple which lies on the back side of the shop. PW1 admitted that he attested Ext.P1 Mahazar and identified the signature in the label in MO1. He did not see the seizure of arrack from the shop of the appellant.

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PW5 supported the evidence of PW6. He narrated the story in the same manner as stated by PW6. Analysing the evidence of PW5 and PW6, 750 m.l arrack was seized from the backside of the shop. PW3 is the Village Officer who prepared Ext.P3 ownership certificate. As per Ext.P3, the appellant is the owner of the property. But, he admitted that there is no fencing separating the property of the appellant and the other property. PW4, the Additional Sub Inspector, obtained Ext.P4 chemical analysis report. After completing the investigation he filed final report against the accused in the court. Ext.P7 is the forwarding note in which sample seal was provided. Ethyl alcohol was detected in both sample. PW7 conducted investigation in this case. He prepared Ext.P7 forwarding note and also Ext.P8 drunkenness certificate. He also issued request to the

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Crl. Appeal No.1343 of 2005 5

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Village Officer for obtaining Ext.P3 certificate.

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A reading of the evidence of the witnesses show that the appellant is conducting a business in the building and the property behind the building is under his control. Even though there is no boundary wall or fencing, it is primary responsibility of the owner to keep his property in such a condition which would not allow others to enter into the property to commit any offence in that property. Sec.64A of the Kerala Abkari Act reads as follows:

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“ Penalty for allowing land, building, room etc. for manufacture, sale or storing for sale of liquor or intoxicating drug .- Notwithstanding anything contained in this Act, or in any other law for the time being in force, any owner or occupier or person having control of, any land, building, room, space or enclosure, permits any person to use such land, building room, space or enclosure for manufacture sale or storing for sale of liquor or intoxicating drug in contravention of this Act or of any rule or oder made thereunder or of any licence or permit obtained under this Act shall be punishable with fine which shall not less than twenty-five thousand rupees unless he proves to the satisfaction of the court that all due and reasonable precautions

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Crl. Appeal No.1343 of 2005 6

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were taken by him to prevent such use.”

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Analysing the evidence, it is found that the appellant committed the offence punishable under Sec.64 (A) of the Kerala Abkari Act.

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In the result, the conviction under Sec.58 of

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the Kerala Abkari Act is set aside. The appellant is convicted under Sec.64(A) of the Kerala Abkari Act and sentenced to pay fine of Rs.25,000/- (Rupees twenty five thousand only) in default of payment of fine, imprisonment for one month. This appeal is partly allowed as above. The appellant is directed to surrender in the Assistant Sessions Judge, Kalpetta to undergo the modified sentence, failing which, the Additional Sessions Judge shall issue non bailable warrant.

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Sd/- P.D. RAJAN, JUDGE / True Copy / P.A. To Judge

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NS/25.02.2016

T.Ajayan @ Gopi v. State of Kerala

Case brief

What is this about?

What did the court decide?

T.Ajayan @ Gopi v. State of Kerala

Case brief

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What did the court decide?

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