THOMAS JOSEPH vs STATE OF KERALA

The appellant herein faced prosecution before the

Court of Session, Wayanad in S.C 347/2006 on the

allegation that when the Excise Party led by the Circle

Inspector of Excise, Sulthan Bathery Circle inspected the

Mini Bus No.KL-12B 3499 on the public road in front of the

Perikalloor High School, the appellant, who was a passenger

therein, was found possessing huge quantity of arrack

imported from the State of Karnataka, contained in 250

packets of 100ml capacity and carried in a big shopper

placed between his legs while sitting on a seat. In the

presence of the Driver and the Conductor of the said bus,

the Excise Circle Inspector arrested the accused and seized

250 packets of arrack as per a seizure mahazar. The

accused and the properties were produced by the Circle

Inspector before the Sulthan Bathery Excise Range Office

where an Excise Inspector registered the crime and

occurrence report. He took over the investigation and also

submitted final report before the Judicial First Class

Magistrate Court-II, Sulthan Bathery under Sections 55 (a)

and 8 (2) of the Kerala Abkari Act. After complying with the

procedure prescribed under the law, the learned Magistrate

committed the case to the Court of Session, from where it

was made over to the learned Additional Sessions Judge

(Adhoc) I, Kalpetta for trial and disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against him under

Sections 8(2) and 55 (a) of the Act. The prosecution

examined five witnesses in the trial court, and proved

Exts.P1 to P7 documents. The MO1 to MO3 properties were

also identified during trial.

When examined under Section 313 Cr.P.C, the

accused denied the incriminating circumstances and

submitted that a false case was foisted against him to help

the Driver and the Conductor of the bus, who actually

illegally transported huge quantity of arrack. No evidence

was adduced in defence by the accused.

On an appreciation of the evidence, the trial court

found the accused guilty under Section 55 (a) of the Act. In

view the conviction on the finding that arrack was illicitly

imported from another State, no separate conviction was

made by the court below under Section 8 (2) of the Act. On

conviction, the accused was sentenced to undergo simple

imprisonment for four years, and to pay a fine of 1,00,000/-

by judgment dated 17.6.2011. 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

material at all to connect the accused with the contraband

articles seized by the Excise party, and that he was only a

passenger in the bus. It was also submitted that a big

shopper containing packets of arrack abandoned by

somebody at the bus was used by the Excise Party to foist a

case against him. This was controverted by the learned

Public Prosecutor, who submitted that there is clear and

convincing evidence including that of the Driver and the

Conductor of the bus, to prove the prosecution case.

Of the five witnesses examined in the trial court,

PW4 is the Excise Sub Inspector who detected the offence,

PW3 is the Excise Inspector who registered the crime and

occurrence report and investigated the case, and PW5 is the

Excise Preventive Officer who assisted the Circle Inspector

in the process of detection. PW1 and PW2 are respectively

the Conductor and the Driver of the Bus. These two

witnesses supported the prosecution. Though the evidence

of the driver does not fully support the prosecution, his

evidence shows that PW4 had seized a big shopper

containing 250 packets of arrack. To that extent of proving

the fact of seizure, his evidence supports the prosecution,

but the evidence given by the conductor is fully in support of

the prosecution.

PW4 and PW5 have given definite evidence that

when the Excise Party led by PW4 inspected the bus, they

saw the accused in this case sitting on a seat with a big

shopper in between his legs. When PW4 opened the big

shopper and examined it, he found 250 packets of arrack

illicitly imported from the State of Karnataka. All the

packets had identical label details showing that it is arrack

manufactured in the State of Karnataka. The arrack

contained in two packets was collected in a bottle as

sample, and the sample was well packed and sealed at the

spot of detection itself. The remaining packets were also

well packed and sealed at the spot of detection, and the

accused was arrested on the spot. The contraband articles

including the samples were seized as per the Ext.P2 seizure

mahazar. The Driver and the Conductor identified their

signature in the seizure mahazar. I find nothing to

disbelieve the evidence given by PW4 and PW5 regarding

the detection. There is absolutely no reason to reject their

evidence when the prosecution case is fully supported by

the Bus Conductor. In cross-examination, the Bus Conductor

stated that the accused had a big shopper in his possession,

and when the Excise party opened it and examined it, they

saw 250 packets of arrack therein. The accused was

arrested on the spot and the packets of arrack were seized

as per mahazar. The Bus conductor has no reason to give

any false evidence against the accused. A suggestion was

put to the witnesses that the big shopper was in fact carried

by the Cleaner of the bus and on seeing the Excise party, he  just ran off and escaped. There is no evidence to probabilse

such a case. It is not known who the Cleaner of the bus

was. PW4 and PW5 are definite that the MO3 big shopper

containing 250 packets of arrack was seized from the hands

of the accused in this case while travelling as passenger in

the bus inspected by them. MO2 series are the empty

packets from which sample was taken and MO1 series are

the remaining 248 packets of arrack manufactured in the

State of Karnataka. The accused has no explanation for the

possession of huge quantity of arrack manufactured in the

State of Karnataka. A clear case of illicit import of arrack

manufactured in the State of Karnataka is well proved in this

case by the evidence of PW4 and PW5, fully corroborate by

that of the Bus Conductor (PW1). The Ext.P7 report of

analysis shows that the liquid contained in the sample was

identified as arrack at the laboratory. The evidence well

convinces the court that the sample was collected from two

packets carried in the MO3 big shopper seized from the

possession of the accused. Thus, I find that the prosecution

has convincingly proved the offence punishable under

Section 55(a) of the Act that the accused was found in

possession of 250 packets of arrack illicitly imported from

the State of Karnataka. In view of the clear evidence

proving the offence punishable under Section 55 (a) of the

Act, no separate conviction was made by the court below

under Section 8 (2) of the Act. I find no reason for

interference in appeal in this case.

Now the question of sentence. The accused was

aged 55 years on the date of detection. The offence was

detected on 21.3.2005. Now we are in 2017 and the

appellant must be now aged about 67 years. No previous

case of similar nature is seen reported against him. He is

said to be an Ex-service man. The substantive sentence

imposed by the court below is simple imprisonment for four

years, and the fine sentence is the minimum possible under

the law. On a consideration of all the relevant aspects

including the present age and circumstances of the accused,

I feel that imprisonment for one year will be the adequate

sentence in this case. The default sentence also can be

reasonably reduced. Though interference in the matter of

fine is not possible, the default sentence can be

appropriately reduced and modified by the court.

In the result, the conviction against the appellant under

Section 55 (a) of the Act in S.C 347/2006 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 simple imprisonment for one year. The fine

sentence is maintained, subject to the modification that the

default sentence shall be simple imprisonment for two

months. The accused will get the benefit of set off as

already ordered by the trial court.