Partly allowed

Philix D'Souza v. State of Kerala

Kerala HC21 Jan 2016CRL.A/677/2005

Case brief

AI extract

What is this about?

Criminal appeal against conviction under Section 55(a) of the Abkari Act for possession of arrack. The High Court reversed the conviction, holding mere possession without authority attracts Section 8, not 55(a), and re-sentenced the appellant.

What did the court decide?

Conviction under Section 55(a) set aside; convicted under Section 8(1) and (2) and sentenced to 3 months rigorous imprisonment and fine of 1 lakh.

Philix D'Souza Vs State of Kerala — Narcotics (NDPS) | 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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THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937

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CRL.A.No. 677 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 960/2000 of ADDITIONAL SESSIONS JUDGE (ADHOC-1), KASARAGOD DATED 26-02-2005

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APPELLANT(S)/ACCUSED::

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PHILIX D'SOUZA, AGED 26, S/O. VILLIAM D'SOUZA, KALLAMKANAM, BELA VILLAGE.

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BY ADV. SRI.I.V.PRAMOD

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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 SRI. N. SURESH.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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acd

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P.D. RAJAN, J.

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Crl.Appeal No.677 of 2005

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Dated this the 22^nd day of January, 2016

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JUDGMENT

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This appeal is preferred by the accused against the

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conviction and sentence in S.C.No.960/2000 of the Additional Sessions Judge(Adhoc-I), Kasaragod u/s.55(a) of the Abkari Act. The charge against the accused is that on 7.8.1999 at 4 p.m. the Excise Inspector, Kasaragod was conducting patrol duty within his jurisdiction, at that time the accused was found in front of the shop of PW1 with a Can, on seeing the Excise Party, he attempted to ran away. The Excise Inspector intercepted him

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and inspected the Can, in which he detected 10 litres of arrack.

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The accused was arrested and contraband articles were seized

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by the Excise Inspector reaching at the Excise Office, he registered a crime, and after completing investigation, laid

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Crl.Appeal No.677/2005 2

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charge before Judicial First Class Magistrate Court,

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Kasaragod from there the case was committed to Sessions Court, Kasaragod.

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During trial, Prosecution examined PW1 to PW4 and

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marked Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. He was also heard u/s.232 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted him and sentenced to rigorous imprisonment for 9 months and fine of 1 lakh. Being₹ aggrieved by that, he preferred this appeal.

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The learned counsel appearing for the appellant contended that the major legal infirmity in this case is that there is no seal affixed at the time of seizure of arrack. Therefore, the chemical analysis report is not admissible. The

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learned Public Prosecutor strongly opposed that contention.

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Based upon the allegation, prosecution examined

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PW4, the Excise Inspector as the occurrence witness. His evidence shows that on 7.8.1999, while he was conducting patrol duty with other Excise Officials, the appellant was found in possession of MO1, which contains 10 litres of arrack. He was arrested after preparing Ext.P1 seizure mahazar, reaching at the Excise Office, he registered Ext.P2 crime and occurrence report. The seized articles were produced before Court as per Ext.P3 property list. He also prepared Ext.P4 forwarding note for sending the sample to the chemical examiner's laboratory. Ext.P5 is the chemical analysis report, in which it is stated that sample contained 42.50% of ethyl alcohol. After completing investigation, he laid charge before Court. PW3, the Preventive Officer supported the evidence of PW4. These witnesses were cross examined by the defence counsel, but nothing has been brought out to discredit the

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evidence of PW3.

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I have examined the oral evidence of PW1 and PW2, who were independent witnesses present at the time of

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seizure. PW1 and PW2 admitted their signature in Ext.P1. But, they deposed that they did not see the seizure of arrack from the possession of the appellant. In this context, I have examined the defence contention advanced by the appellant.

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He contended that in Ext.P1 there was no mention about the nature of sealing, but on perusal of that document, it is clear that at the time of taking sample proper seal was affixed in the sample bottle and in the forwarding note. In such a situation, there is no reason to interfere in the finding recorded by the Court below. In the trial Court, the appellant relied the decision in S. Jeevanandan v. State of Tamil Nadu [2004 Crl. L.J. 3834] and Asokan and others v. State of Kerala

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and others [1998 (1) KLT 330]. Analysing the evidence, it is

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clear that the prosecution proved the case beyond reasonable

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doubt. There is no reason to disbelieve the evidence of PW3

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and PW4. Therefore, it is true that the appellant was in possession of arrack.

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This Court in Gopan v. State of Kerala [2007(3)

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KLT 443] held that the mere possession of arrack in any form without any authority would only attract Section 8 and not Section 58 of the Abkari Act. In the circumstances, the conviction u/s.55(a) of the Abkari Act is set aside and the appellant is convicted u/s.8(1) and (2) of the Abkari Act and sentenced to imprisonment for three months and fine of 1₹ lakh, in default of payment of fine, imprisonment for one month. [Relied the decision in Sasikumar v. State of Kerala [2012 (4) KLT 867 (SC)]. The period of detention undergone by the appellant during trial, investigation and enquiry shall be

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set off against the terms of imprisonment. The appellant is

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directed to surrender in the Additional Sessions Judge

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(Adhoc-1), Kasaragod forthwith to receive the sentence, failing which the learned Additional Sessions Judge shall issue

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non bailable warrant against the appellant.

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