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Judgment
The appellant herein stands convicted under Sections 55 (a) and 58 of the Kerala Abkari Act ( "the Act" for short) in S.C 143/2011 of the Court of Session, Kasaragod.
The prosecution case is that at about 9.45 a.m on 7.12.2005 at Nilamkayam within the limits of the Rajapuram Police Station, Kasaragod, the appellant was found transporting huge quantity of 400 litres of arrack, contained in 4000 packets of 100 ml capacity, and also 90 litres of spirit contained in three plastic cans (30 litres
each) in the vehicle No.KL-13N-9340 with a pseudo number KL-14E-8496. The offence was detected by the Sub Inspector of Police, Rajapuram during his usual patrol.
When he gave signal to stop the vehicle, the driver sped it away, but the Police party chased it. After running for a distance, the driver stopped the vehicle and took to his heals by abandoning the vehicle containing the huge quantity of spirit and arrack. The person, who ran off and escaped, was identified as the appellant in this case. The huge quantity of arrack and spirit was seized as per a mahazar by the Sub Inspector along with the said vehicle, and a crime was registered against the accused, who ran off and escaped. After investigation, the Sub Inspector submitted final report in court, under Sections 55(a) and 58 of the Act. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc) III, Kasaragod for trial and disposal.
The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 55(a) and 58 of the Act. The prosecution examined 10 witnesses in the trial court, and proved Exts.P1 to P13 documents. There was no property to be identified during trial because the properties had been by the time produced before the Assistant Excise Commissioner for necessary action. However, the inventory prepared by the Assistant Commissioner of Excise, certified by the Judicial Magistrate having jurisdiction, was proved in evidence. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that he has nothing to do with the properties seized in this case by the Police, and that he had not transported any quantity of arrack or liquor. The accused did not adduce any evidence in defence.
On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of 1 lakh each under Sections 55 (a) and 58 of the Act by judgment dated 12.1.2012. Aggrieved by the judgment of conviction, the accused has come up in appeal.
When this appeal came up for hearing, the learned counsel for the appellant submitted that there is no proper and acceptable inventory in this case, and that there is no satisfactory evidence to identify the appellant as the person who ran off and escaped by abandoning the huge quantity of arrack and spirit along with the vehicle.
On the other hand, the learned Public Prosecutor submitted that the accused was clearly identified at the spot of detection itself, and that the inventory was prepared by the Assistant Excise Commissioner as authorised officer, and it was duly certified by the learned Judicial Magistrate having jurisdiction.
Of the ten witnesses examined in the trial court, PW6 is the Sub Inspector who detected the offence. The crime was also registered by him. He investigated the case, and he also submitted final report in court. PW1 is the Head Constable, who assisted the Sub Inspector in the process of detection. PW2 and PW3 are the independent witnesses examined to prove the seizure of the contraband articles along with the vehicle involved. PW4 is only an attestor to the Ext.P4 scene mahazar, PW5 is the Village Officer, who prepared the Ext.P5 scene plan, PW7 is the sub Inspector who conducted some part of investigation including seizure of the agreement as per which the vehicle in question was transferred in the name of the accused, PW8 is the registered owner of the vehicle examined to prove the agreement of transfer, PW9 is the stamp vendor, who sold the stamp paper wherein, the Ext.P13 agreement is prepared and PW10 is the witness examined to prove the seizure of the Ext.P13 agreement of transfer.
PW6 and PW1 have given definite and consistent evidence proving the seizure of huge quantity of arrack and spirit in this case. The evidence of PW6 is that two samples each were collected from the total quantity of arrack and also from the quantity of spirit at the spot of detection, and the four sample packets were well packed and sealed at the spot of detection itself. The huge quantity of 400 litres of arrack was contained in 4000 packets of 100 ml capacity having identical labels. The quantity of spirit was contained in three plastic cans of 35 litres capacity. From the spirit also, the required samples were collected by PW6. Labels containing the signature of the accused and the witnesses were affixed on the sample bottles as well as the other properties packed at the spot of detection. The defence could not bring out anything in the cross-examination of PW6 or PW1 to discredit their evidence regarding seizure of the contraband articles. They are definite and consistent that the huge quantity of liquor and spirit was seen transported in a Maruti Car with number exhibited as KL14 E-8496. When the Sub Inspector gave signal to stop it, the driver escaped with the vehicle without stopping it there, but the Police party chased it. After running for a short distance, the driver stopped the vehicle, and took to his
heals. Both the witnesses are consistent that the person, who ran off and escaped is the accused in this case. Their evidence shows that the two witnesses had clearly seen the person, and they had sufficient time to have his face and features imprinted in their mind. On the basis of such features imprinted in their mind, they identified him properly and during trial also, they identified the accused as the person who ran off and escaped. Thus, I find that the exact identity of the person, who ran off and escaped, by abandoning the huge quantity of arrack and spirit stands well proved beyond any reasonable doubt by the evidence of PW6 and PW1. The prosecution case is that the actual number of the vehicle is KL-13N-9340, but to transport huge quantity of spirit and arrack, the accused exhibited a pseudo number on the vehicle. Ext.P8 is the registration particulars of the vehicle No.KL-13N-9340 and PW8 is the registered owner of the vehicle, who had transferred the vehicle to the accused herein as per the Ext.P3 agreement. Seizure of this agreement stands proved by the evidence of PW10 and also the Sub Inspector. PW6 is definite in his evidence that the correct number of the vehicle was identified at the spot of detection itself as KL-13N-9340. The chassis number and engine number were verified at the spot, and he detected that a pseudo No.KL-14E-8496 was exhibited on the vehicle with the object of transporting spirit and arrack. Sale of the vehicle to the accused as per Ext.P13 agreement is proved by PW8. There is nothing in his evidence in favour of the accused.
This is a case where the two independent witnesses examined by the prosecution fully supported the prosecution. Both the witnesses are definite and consistent regarding the seizure of arrack and spirit by the Sub Inspector. They also stated that the driver of the vehicle wherein it was transported stopped it immediately, and ran off and escaped. But the quantity of spirit contained in three plastic cans, and the huge quantity of arrack contained in so many packets were seized by the Sub Inspector at the spot of detection. They had clearly witnessed the seizure, and they had attested the seizure mahazar consciously. The two witnesses identified their signature in the detection mahazar proved as Ext.P3, and the witnesses also identified their signature on the label affixed on the sample bottles. The sample bottles were produced by the Police in court on the next day itself along with a forwarding note. The Ext.P12 chemical report shows that the samples were detected as illicit liquor and spirit.
The liquid contained in one set of samples was identified as spirit, and the other was identified as illicit liquor. Of course, it is true that there is no clear and satisfactory evidence proving that it was arrack. That is why probably the court
below made conviction under Section 58 of the Act.
I find that the prosecution case stands well
proved by the evidence of PW6, PW1, PW2 and PW3.
Very rarely, the independent witnesses support the prosecution in cases under the Act. But here I find two witnesses fully supporting the prosecution corroborating the detecting officer on all material particulars including the type of the vehicle, the nature of the liquor and spirit, and also the identity of the person, who ran off and escaped by abandoning the quantity of spirit and liquor. I find no reason to disbelieve PW2 and PW3, the independent witnesses. They have no reason to give any false evidence against the accused. They had clearly witnessed the seizure of the contraband articles including the vehicle which carried a pseudo number at the time of detection. The witnesses also identified the accused as the person who ran off and escaped by abandoning the huge quantity of liquor
and spirit.
One argument advanced by the appellant is that there is no proper inventory in this case. Ext.P1 documents contain the inventory prepared by the Assistant Commissioner of Excise and this contains the signature of the Excise Inspector also. The defence is on a statement inadvertently given by PW6 during trial that the inventory was prepared by him. PW6 clarified and corrected that the form of inventory was in fact prepared by him as the list of the properties to be produced before the Assistant Commissioner, and the said form was used as inventory by the Assistant Commissioner of Excise to prepare the inventory. The inventory in Ext.P1 is signed by the Assistant Commissioner of Excise, and it is certified duly by the Judicial First Magistrate having jurisdiction as true and correct. The photograph of the bundles and the cans was also certified by the learned Magistrate. The Government of Kerala has appointed Assistant Commissioners of Excise as authorised officers for the purpose of functions under Section 57B of the Act. Only the samples were produced in court, but the other properties were produced before the Assistant Commissioner of Excise for necessary action. The properties were seen and verified by the Assistant Commissioner, and the only mistake he committed is that instead of preparing his own inventory, he treated the list of property given by the Sub Inspector as inventory. However, it contains the signature and the required elements of an inventory. The material question is whether the Assistant Commissioner of Excise had seen and physically verified the properties produced before him. In this case, I am well satisfied that the Assistant Commissioner of Excise signed in the inventory as authorised officer after physically seeing and verifying the contraband articles including the huge quantity of liquor packets and the quantity of spirit.
Preparing an inventory is a process wherein, the authorised officer will have to physically see and verify the properties and make a certificate to that effect. What is very important is not simply signing the certificate, but physically verifying the properties and coming to the satisfaction regarding the nature of the properties produced before him. Those elements are satisfied in this case.
I find that the prosecution case stands well proved beyond any reasonable doubt. Though the allegation is that the accused was found possessing huge quantity of arrack along with spirit, the court below convicted the accused only under Section 58 of the Act for the reason that what stands proved by scientific report is that the liquid other than spirit was identified as illicit liquor. Anyway, it is only a matter of alteration, if at all required. I find no reason for interference in appeal.
Now the question of sentence. The court below has imposed a sentence of rigorous imprisonment for four years each under the two sections and also the minimum sentence of fine. No interference is possible in the matter of
fine. However, the jail sentence can be modified or reduced, if so required. The age of the accused was 25 years at the time of detection. Now he must be aged 37 years. He is at his prime age with no other conviction, or involvement in criminal cases. No other crime of similar nature is seen reported against him. Though four years each is imposed, the trial court has given the benefit of concurrent sentence.
In the particular circumstances, on a consideration of all the aspects including the age of the accused then and now, I feel that rigorous imprisonment for two years each will be the adequate sentence in this case. If the accused has already served out the said term and also the default sentence, he can be released.
In the result, the conviction against the appellant under Sections 55(a) and 58 of the Act in S.C No.143/2011 of the court below is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the court below will stand reduced to rigorous imprisonment for two years each under the two sections. The fine sentence with the default sentence thereon is maintained. If the accused has already served out the sentence, including default sentence, he can be released. He will get the benefit of concurrent sentence as already ordered by the trial court.