Appellant is the accused in Sessions Case No.135/2002 on the file of the Additional Sessions Judge, Kozhikode, who has been convicted and sentenced for offence punishable under Sections 55(a) and (g) of the Abkari Act.
2. Short facts, necessary for disposal of the case, is as follows :
On 16-01-1998 at about 12 noon, the Excise Officers found out that the appellant had stored 5 litres of illicit arrack in a can in his house. That apart, he was keeping utensils and implements for manufacture of illicit arrack in his house. After detecting the offence and completing the formalities, the accused was arrested. Sample was taken from the contraband. The relevant documents and the accused were produced before the learned Magistrate on the same day. Without delay, material records and the thondi articles were also produced before the court.
3. Court below examined four witnesses and marked eleven documents on the side of the prosecution. DW's 1 and 2 are the documents relied on by the defence. Material objects MO's 1 to 5 were also marked.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. Learned counsel for the appellant contended that conviction of the appellant both under Sections 55(a) and (g) of the Abkari Act are bad in law. It is also submitted that the court below did not properly appreciate the evidence which resulted in miscarriage of justice. Per contra, learned Public Prosecutor contended that the evidence adduced by the prosecution witnesses and the documents produced clearly show that the appellant is guilty of both the offences under Sections 55(a) and (g) of the Abkari Act.
6. PW1 is the Preventive Officer attached to Quilandy Excise Range. On 16-01-1998, he along with his party members went for patrol duty. When they reached near a railway gate, they got information that the appellant was engaged in manufacture of illicit arrack. A search memo was prepared and sent to the court. Thereafter, the detecting officer and party proceeded to house of the appellant situated in Ward No.VIII/83 of Quilandy Municipality. At that time, the appellant was there in the house. After inspecting the entire house, they found out certain implements used for manufacture of illicit arrack. They are MO's 2 to 5. It is also deposed by PW1 that 5 litres of illicit arrack distilled by the appellant was also recovered from the house. After arresting the accused, the material records and the contraband were produced before the Excise Office and later before the court. This witness was cross examined by the defence counsel. Questions were put to this witness to show that the house did not belong to the appellant. PW1 stated that he examined the ration card at the time of detection. That apart, prosecution rely on Ext.P11, the ownership cum possession certificate issued by Quilandy municipality indicating that the appellant was the owner of the house at the material time.
7. PW2 was the Excise Guard, who accompanied PW1 at the time of detection of the offence. He also participated in the search and seizure. This witness also testified that illicit arrack and specially designed aluminium vessels usable for distillation of illicit arrack were recovered from the house of the appellant. Testimony of PW2 is in perfect agreement with that of PW1. In spite of cross examination, I do not find any reason to disbelieve the evidence tendered by PW2 regarding the detection of the offence.
8. PW3 is an independent witness examined by the prosecution to prove search and seizure. He failed to support the prosecution case. But in cross examination, he admitted that he signed on the seizure mahazar, but not from the place of detection. According to him, he was asked to sign on the seizure mahazar by the Excise Officers. His testimony in chief examination that he did not know the appellant prior to the incident has given a go by in cross examination.
9. PW4 is the Excise Inspector. He registered the crime.
Ext.P5 is the crime and occurrence report. He produced the property before the court. Ext.P7 is the thondi list. Ext.P9 is the forwarding note submitted for sending the contraband to the chemical laboratory for analysis. Ext.P10 is the analyst's report showing that the contraband was arrack. This witness was cross examined by the defence counsel to establish that the house from where the recovery of contraband and utensils were effected did not belong to the appellant. This contention is stoutly denied by PW4. He also relied on Ext.P11 certificate issued by the Quilandy Municipality.
10. Learned counsel for the appellant drew my attention to the deposition of PW4 wherein, marking of the said document was objected to at the time of trial. The trial court over ruled the objection finding that it was issued to the investigating officer and it could be proved in evidence through him. It is also observed that non examination of the maker of the certificate is not fatal to the prosecution case. Learned counsel for the appellant submitted that PW4 has disowned making any application for Ext.P11 certificate and it was not issued on the basis of his application. Whatever that be, it is proved to be the certificate issued under the authority of Municipality and it can be deemed to be a public document. There is no challenge made by the accused regarding the contents of the document. Therefore, I find no illegality in the ultimate finding of the trial court that the house from where the recovery of contraband and implements for distillation of arrack was effected belonged to the appellant.
11. Learned counsel for the appellant contended that the conviction of the appellant under Sections 55(a) and (g) of the Abkari Act cannot stand together. The reliable testimony of the prosecution witnesses and the documents produced by the prosecution will show that as alleged by the prosecution illicit arrack and implements were recovered from the house of the appellant. Therefore, I am of the view that an offence under Section 55(g) of the Abkari Act was correctly made out. The essential ingredients for attracting an offence under Section 55 (a) of the Abkari Act is either import or export of illicit liquor.
For the purpose of import or export, it must be established that the accused was transporting, transiting or possessing illicit liquor. Going by the allegations in this case, the appellant was engaged only in manufacturing illicit arrack in his house. None of the vital ingredients for attracting Section 55(a) of the Act has been alleged or proved. That apart, both these allegations may not stand together as they are contradictory to one another, at least in this case. In the absence of any allegation and proof, I am of the view that conviction of the appellant under Section 55 (a) of the Abkari Act is not sustainable.
12. Learned counsel for the appellant contended that if at all this court finds that he has possessed illicit arrack, the conviction may be altered to Section 63 of the Act. I am afraid, I cannot agree with the submission for the following reasons. Section 8 of the Abkari Act prohibits any dealing of arrack after 03-06-1997. That apart, Section 63 of the Act deals with prosecution and punishment for offences not other wise provided for. In this case, the offence will directly fall under Section 55(g) of the Abkari Act. Therefore, I am of the view that Section 63 of the Act has no application in this case.
13. Learned counsel for the appellant submitted that the sentence awarded by the court below is harsh. According to him, the sentence has to be reduced. Considering the entire facts and circumstances and also the prolonged nature of this litigation, I am of the view that this is a fit case wherein the sentence to be suitably modified.
In the result, the appeal is partly allowed. Conviction of the appellant under Section 55(a) of the Abkari Act is set aside. Conviction of the appellant under Section 55(g) of the Abkari Act is confirmed. Sentence is reduced to undergo rigorous imprisonment for a period of three months and pay a fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine, he shall undergo simple imprisonment for a period of three months. He is entitled to get the benefit of set off under Section 428 Cr.P.C. The trial court is directed to take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, JUDGE.
//True copy// amk P.A to Judge