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2015 Supreme(Ker) 936
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SUNIL THOMAS, J.
KUNJANANDAN - APPELLANT
Vs.
STATE OF KERALA (SHO KUTHUPARAMBA POLICE STATION) REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - RESPONDENT
Crl. A. No. 600 of 2009
Decided on : 19-08-2015
Advocate Appeared:
SRI. V.V. ASOKAN, SRI. P.P. RAMACHANDRAN
PUBLIC PROSECUTOR : SMT P MAYA
The main legal point established in the judgment is the requirement for legally acceptable evidence to prove the illegal import of liquor, the insufficiency of relying solely on labels to establish the offence, and the need to prove elementary facts constituting the offence.
Headnote:
Abkari Act - Conviction under Section 55(a) - Summary of Acts and Sections: The court discussed the provisions of Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. It highlighted the requirement to prove illegal import of liquor and the insufficiency of relying solely on labels to establish the offence. The court also emphasized the need for legally acceptable evidence to prove the illegal import of liquor, as well as the requirement for oral evidence and corroboration through seizure mahazar. The judgment referenced the case of Tippu Mohammed v. State of Kerala and Another (2015 (1) KHC SN 4) to support its interpretation of the legal provisions.
Fact of the Case:
The accused was convicted for possession of Indian made foreign liquor (IMFL) in contravention of the provisions of the Abkari Act. The prosecution alleged that the accused was in possession of IMFL and intercepted him, recovering 16 bottles of IMFL. The accused faced trial, was found guilty, and sentenced to imprisonment and a fine.
Finding of the Court:
The court found that the prosecution failed to prove the illegal import of the IMFL and the alleged sale by the accused. It noted that the evidence did not support the prosecution's case, and the accused's defense of the liquor being for personal use was not challenged. Consequently, the court held that the conviction against the accused was not legally sustainable and acquitted the accused.
Issues: The key issues included the sufficiency of evidence to prove illegal import and sale of IMFL, the credibility of witnesses, and the permissible limit of IMFL for personal use.
Ratio Decidendi: The court emphasized the requirement for legally acceptable evidence to prove the illegal import of liquor, the need for oral evidence and corroboration through seizure mahazar, and the insufficiency of relying solely on labels to establish the offence. It also highlighted the importance of testing assertions through cross-examination and the need to prove elementary facts constituting the offence.
Final Decision: The appeal was allowed, the conviction and sentence imposed by the Court below were set aside, and the accused was acquitted. The bail bond executed by the accused was discharged.
The sole accused who stands convicted in crime No.518/2004 of Kuthuparamba Police Station, for offences punishable under Section 55 (a) of the Abkari Act and Rule 9 of Foreign Liquor Rules is the appellant herein.
2. The prosecution alleged that on 31/8/2004 at about 4.45 p.m., PW1 got secret information about the sale of Indian made foreign liquor (IMFL) by the accused, in contravention of the provisions of the Abkari Act. He reached the spot, intercepted the accused and recovered 16 bottles of IMFL each containing 180 ml.each. After the initial formalities, he was arrested and produced before the Magistrate Court. PW1 completed the investigation and laid the final charge before the Court.
3. The accused faced the trial before the Sessions Court, Thalassery, in SC No.948/2005. The prosecution examined PW1 to PW5 and marked Exts.P1 to P8. MO1 and MO2 were identified. The court below, on an evaluation of the materials, found the accused guilty, convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rupees One Lakh and in default, to undergo rigorous imprisonment for one year more.
4. Aggrieved by the above judgment, conviction and sentence, the accused has preferred this appeal. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Examined the records.
5. PW1 is the detecting officer. He deposed that on the relevant day, he got secret information that the accused was in possession of IMFL and standing at a specified location. On reaching there, he was found standing at a lane carrying a black plastic bag. He was searched and 16 bottles of IMFL, each containing 180 m.l. were recovered. One bottle was opened, tested and confirmed that it was IMFL and the accused was arrested at the spot. Currency notes worth Rs.210/- was also recovered from him. One opened bottle and another bottle were taken as samples, sealed and labels bearing the signatures of the accused, two independent witnesses and that of PW1, were affixed. The seizure mahazar Ext.P1 was prepared. The accused was arrested and thereafter taken to the police station.
6. The above version of PW1 is corroborated by the oral testimony of PW2, who was the ASI of Kuthuparamba police station, who accompanied the detecting officer. The version of PW1 and PW2 are uniform in general particulars. The above version of interception, search, seizure, labeling and other relevant facts tallied with the version meticulously mentioned in Ext.P1, the seizure mahazar, as well as in Ext.P2 and P3, which were the memo of arrest and the inspection memo respectively. The above three documents are the contemporaneous documents. On material points, they corroborate each other.
7. The prosecution relied on the oral testimony of PW3 and PW4, projecting them as independent eye witnesses to the entire incident. However, both the witnesses turned hostile and did not support the prosecution case in any manner. Both the witnesses admitted their signature, though, according to them, it was signed at a different place and in different circumstances. However, they have no allegation that they were either coerced to execute the above document or that they have affixed their signature on the blank papers. In the absence of any other doubtful circumstance, I am not inclined to disbelieve the version of the prosecution in this regard. Hence, the fact that, they turned hostile and retracted from their version given to the police, will not in any manner weaken the prosecution case to that extent.
8. The defence set up by the accused was that the case was a false one and he has been falsely implicated in the case. However, absolutely no motive is alleged against the investigating officer or the detecting officer. In the absence of any specific motive, there is no reason to presume why the accused should be falsely implicated in a criminal case.
9. It was vehemently contended by the learned counsel for the accused that the detecting officer h
