The High Court allowed an appeal against conviction under the Abkari Act for carrying foreign liquor. The court held that official witness evidence of seizure was insufficient without independent corroboration, acquitting the appellant.
Conviction and sentence set aside; appellant acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937
CRL.A.NO. 1431 OF 2004 (C)
AGAINST THE JUDGMENT IN SC NO.34/2003 OF ADDITIONAL SESSIONS COURT, FAST TRACK, ADHOC-II, KOZHIKODE DATED 10-08-2004
APPELLANT(S)/ACCUSED :
PRAKASAN, S/O.BALAN, KALARIPARAMBIL HOUSE, CHEMANCHERY AMSOM, KOYILANDY.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/RESPONDENT :
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Appeal No.1431 of 2004
Dated this the 24th day of February, 2016
J U D G M E N T
This appeal is preferred against the conviction
and sentence in S.C. No.34 of 2003 of the Additional Sessions Judge, Fast Track (Adhoc-II) Kozhikode under Sec.55(a) of the Abkari Act. The charge against the appellant was that on 12.12.2000 at 4.30 p.m., he was found carrying two litres of Indian Made Foreign Liquor on the northern side of national highway on the opposite of Panchayath fish market in Chemanchery amsom desom of Koyilandy taluk by the preventive officer, Excise Range office, Koyilandy. Accused was arrested and the foreign liquor was seized. Reaching at the excise office, he registered the crime. After completing investigation, the Excise Range Inspector laid charge before the Judicial First Class Magistrate Court, Koyilandy. The case was committed to Sessions Court, Kozhikode. Subsequently, it was made over to Additional Sessions Court (Adhoc-II).
Crl. Appeal No.1431 of 2004 2
Crl. Appeal No.1431 of 2004 3
Rum in a plastic bag near Chemanchery Panchayath fish market. He tasted it and identified it as IMFL. The accused was arrested for that, he prepared Ext.P1 arrest memo. Ext.P2 is the seizure mahazar. They took sample of 180 ml from each brand and sealed it. The balance liquor was also taken into custody. The balance liquor was marked as MO1 series and the plastic bag was marked as MO2 and produced it before the excise office for that, they registered a crime and occurrence report. PW3 supported the evidence of PW1. PW2, the Village Officer prepared Ext.P3 sketch. But the independent witnesses present there did not support the seizure. Analysing the evidence of PW1 to PW4, it is clear that there is no independent corroboration to the seizure of MO1 series.
Crl. Appeal No.1431 of 2004 4
matters to be considered by a court. When that matter is considered what is the cumulative effect of these aspects of evidence determines the question of fact. Though the extend of one factor may influence the decision would be materially a different question. Therefore the court is concerned only about the quality of the evidence, for that as a whole, the witnesses are weighed and not numbered. Hence, this court is bound to examine the statement of witnesses who had given evidence in the trial court. Therefore one can reach at a conclusion only after careful analysis of the above evidence.
Crl. Appeal No.1431 of 2004 5
court after preparing Ext.P8 forwarding note. Ext.P9 Chemical examination report shows 41.72 percentage of alcohol. The learned counsel appearing for the revision petitioner contended that nothing was seized from the possession of the accused.
Crl. Appeal No.1431 of 2004 6
necessary to prove the alleged offence. In the absence of specific independent evidence, the evidence of official witnesses are not sufficient to fasten any criminal liability. Since the punishment under the Abkari Act is severe, strict proof is required to prove the seizure of foreign liquor. A simple seizure itself is not sufficient to prove the offence under Sec.55. In the absence of such strict proof, the accused is entitled to get the benefit of doubt.
In the result, the conviction and sentence passed by the learned Magistrate under Sec.55(a) of the Abkari Act are set aside. The accused is acquitted and set at liberty.
Sd/- P.D. RAJAN, JUDGE
/ True Copy /
NS/12/07/2016
P.A. To Judge
2 issues framed by the court
Whether the conviction under Sec.55(a) of the Abkari Act is sustainable in the absence of independent corroboration for the seizure of liquor by official witnesses.
Whether the evidence of investigating officers alone is sufficient to prove the offence of carrying foreign liquor without independent witnesses.
Colour shows how this judgement treated each authority
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1 provisions across 1 enactments
PRAKASAN
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
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P.D. RAJAN
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