Revision petitioner was convicted by the two courts below for an offence under Section 55(a) of the Abkari Act (in short, “the Act”) on the allegation that he was found possessing 1.750 litres of Indian Made Foreign Liquor (IMFL) on 23.10.1996 at about 12.15 p.m. The Excise Officers, while on patrol duty, detected the offence and apprehended the revision petitioner. After preparing a seizure mahazar and other material documents and also on taking samples from the contraband, the accused and the property were removed to the Excise Office. Thereafter, the case was registered.
2. At the trial, learned Magistrate examined five witnesses on the side of the prosecution. Four documents were also marked. MOs 1 and 2 are the material objects. There was no defence evidence.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
4. Learned counsel for the petitioner raised a very serious question regarding the legality of conviction. According to him, the courts below ignored the recitals in Ext.P1 mahazar casting a serious doubt on the truthfulness of detection as alleged by the prosecution. Prosecution case, unfolded by evidence, is that on 29.10.1996 at about 12.15 hours in the noon, the revision petitioner was found in possession of IMFL and the contraband article was seized. Ext.P1 seizure mahazar is one said to be prepared contemporaneous to the detection. Learned counsel for the revision petitioner contended that if we go through the recitals in Ext.P1, it cannot be seen that there was a proper detection of offence. My attention is drawn to one statement in Ext.P1, which shows that after taking samples, labels were affixed on them showing the crime number and date. Learned counsel would argue that this statement cannot be treated as true, for the reason that the Excise Officers could not have known the crime number from the place of detection, which is away from the office. According to the learned counsel, there are only two possibilities - (i) the seizure mahazar was not prepared from the place of occurrence and so much so it cannot be treated as a document contemporaneously prepared or (ii) the entire documents must have been prepared from the Excise Office, which would violate the provisions of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) as well as the Act.
5. Per contra, learned Public Prosecutor contended that the testimony of material prosecution witnesses, which have been considered and accepted by the courts below, would show that there is no irregularity or illegality in the detection of the offence. It is contended by the learned Prosecutor that the testimony of material witnesses would only indicate that the said recital in Ext.P1 could only be a mistake. It is true that from the place of detection, it was impossible to show the crime number in the seizure mahazar. Testimonies of PWs 1, 4 and 5 were relied on by the Prosecutor to advance this argument. PW1 when cross-examined stated that the crime number was assigned from the Excise Office. PW4 in cross- examination, deposed that it was impossible to affix a label on the samples taken, with crime number, from the place of detection. In his re- examination, PW4 deposed that the crime number was entered on the label affixed on the bottles in his presence from the Excise Office. PW5, the detecting officer, admitted in cross-examination that crime number could be obtained only at the time of registering the case. It is also his statement that from the place of detection, a label containing case number could not have been affixed on the bottles. Learned Prosecutor on the basis of this evidence would contend that the statement in Ext.P1 that a label containing the crime number was affixed on the bottles from the place of detection could only be a mistake. According to him, this mistake cannot be treated as an infirmity in the prosecution case. In denial, learned counsel for the revision petitioner contended that if it gives any room for doubt, the benefit should be given to the revision petitioner.
6. I have carefully gone through the impugned judgments. It is seen that same contentions were raised before the lower appellate court. Learned Sessions Judge rejected the contention advanced by the revision petitioner that the case was foisted on him for the reason that if the Excise Officers wanted to fix the revision petitioner, they could have prepared Ext.P1 in a foolproof manner. That reasoning cannot be said to be faulty. Learned counsel for the revision petitioner based on Section 102(3) Cr.P.C. and Section 36 of the Act contended that the alleged search and seizure cannot be believed. According to him, if the recitals in Ext.P1 are given due weight, then, it can be seen that the document allegedly prepared contemporaneous to the detection is not legally acceptable. If Ext.P1 is disbelieved, it can only be seen that the detection becomes an affair cooked up from the Excise Office. In both cases, the prosecution should suffer, contended by the learned counsel. In support of his argument, a decision of the Madras High Court in Venkatammal v. The District Collector and District Magistrate & another (CDJ 2008 MHC 2675) is cited. That was a case dealing with a writ of habeas corpus. The Madras High Court considered the prosecution contention and found that the case was registered at 11.30 a.m. under the provisions of the Tamil Nadu Prohibition Act. But, the arrest and seizure of illicit arrack from the accused had taken place at 9.45 a.m.. It was observed that if that be so, the arrest card and seizure mahazar could not have contained the crime number. It is, therefore, deduced that the presence of crime number in a document which came into existence before registration of the case was unbelievable. Learned counsel for the revision petitioner relying on the above decision would contend that Ext.P1 becomes totally unreliable for the reason that crime number was shown on the labels. In my view, the explanation given by the witnesses, especially the version in the re- examination of PW4, which was not challenged in cross-examination, would go to show that the recital in Ext.P1 is a mistake of fact. If it is a palpable mistake, evident from other materials relied on by the prosecution, I am of the view that the revision petitioner cannot capitalise this mistake. Therefore I find no illegality in the lower courts' consideration of evidentiary value of Ext.P1.
7. There are vital infirmities regarding the proof of ingredients of offence under Section 55(a) of the Act. There is no allegation or proof that the revision petitioner possessed liquor either for import or export. In this case, the revision petitioner was in possession of 1.750 litres of IMFL. Prosecution has no case that it was a liquor not permitted to be sold in the State of Kerala. Totality of evidence would show that the revision petitioner possessed liquor slightly in excess of the prescribed quantity. Prosecution witnesses had deposed that at the material time, only one litre was permitted to be kept and that too, under a permit. Even if we accept the prosecution case, I am of the view that only Section 13 read with Section 63 of the Act alone is attracted. Hence the conviction of the revision petitioner is modified accordingly.
In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Section 55(a) of the Abkari Act is set aside. He is convicted under Section 13 read with Section 63 of the Act. He shall pay a fine of `1,000/- (Rupees one thousand only). In default of payment of fine, he shall undergo simple imprisonment for a period of fifteen days. The trial court shall take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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