Aggrieved by the conviction of the appellant under Sections 55(a) & (i) of the Abkari Act (in short 'the Act'), he has come up in appeal under Section 374(2) Cr.P.C.
2. Short facts, are as follows :
While PW1, the Excise Inspector and his party were patrolling at Kondazhi on 11-11-2000 at about 6.30 p.m., a reliable information was received that the appellant was selling liquor from his house. Immediately, they went to his house. He was running a tea shop also. PW1 pushed open the front door and found the appellant at the other end of the house. He was pouring out some liquor from a bigger bottle to a smaller one. Another man was standing near him. On seeing the Excise Officers, the onlooker took to his heels. Suddenly, the appellant threw the bottle held by him into a hearth in the kitchen. The bottle caught fire. However, PW1 could manage to pull it out with his baton. On smelling, it was found that the bottle contained liquor. A thorough search made in the house revealed that the appellant was possessing a total quantity of 3.9 litres of Indian Made Foreign Liquor (I.M.F.L) without any lawful authority. He was arrested for commission of the offences. After preparing material records, the Excise party took him to the court.
3. Heard the learned counsel for the appellant and the learned Public Prosecutor.
4. Court below considered the testimony of five prosecution witnesses and marked Exts.P1 to P12 on the side of the prosecution to find that the appellant had committed the offences. Material objects are MO's 1 to 4. There was no defence evidence.
5. Learned counsel for the appellant submitted that the court below committed a legal error in convicting the appellant under Section 55(i) of the Act without an allegation in the occurrence report (Ext.P7) and the final report.
6. PW1 is the detecting officer. He conducted the search and recovered bottles from various places in the house wherein the appellant resided. According to him, a total quantity of 3.9 litres of Kaycee Fine XXX rum bottles were unearthed from his house. Ext.P1 is the seizure mahazar. It shows that the appellant was engaged in pouring the liquor from one bottle to another at the time when the Excise Officers entered the house. At that time, another person was standing by the side of him. On seeing the Excise Officers, the other man ran away. Appellant threw the bottle held by him to a hearth with an intention to destroy it. However, PW1 could take it out and examine.
7. PW's 2 and 3 are the independent witnesses cited to prove the search and seizure. Even though they admitted their signatures on the seizure mahazar, arrest memo, property list etc., they contended that they were asked to put signatures from the Excise Office. Virtually, they did not support the prosecution case as the way they were expected to do.
8. PW5 is the Investigating Officer. It appears that there is no delay in producing the accused and submitting material papers before the court after detection of the offence.
9. Learned counsel for the appellant submitted that neither the final report nor the crime and occurrence report show an allegation that the appellant was engaged in selling liquor or he stored liquor for the purpose of sale. The trial court framed a charge under Section 55(i) of the Act. It is true that Section 216 Cr.P.C enables the court to alter or add to any charge at any time before the judgment is pronounced. Decisions are aplenty indicating that alteration or addition of charge can be done even at the appellate stage before pronouncement of the judgment in appeal. Only thing is that the accused shall not be prejudiced on account of this exercise. It has been interpreted that the words “add to” mean addition of a new charge, and not a mere addition of a few words or corrections. Therefore, power of the court to frame additional charge against the appellant under Section 55(i) of the Act cannot be questioned. But the question here is whether addition of charge is based on any materials in records including the evidence.
10. Ext.P1 seizure mahazar shows that the appellant was seen pouring liquor from one bottle to another. When PW1 was examined, he deposed that on seeing the Excise party, other person seen in the house escaped. He has no case that the ran away person carried any liquor with him. Section 3(15) of the Act defines 'sale or selling'. They include any transfer including a gift. Therefore, it may not be necessary to expect recovery of a glass tumbler or cash to indicate a concluded sale. But there must be specific allegation that the appellant was engaged in sale and the allegations must be established from the attendant circumstances. Testimony of PW1 is the only material on which the learned Public Prosecutor urge a contention that the appellant was selling liquor at the material time. But it is to be noted here that in spite of a full fledged investigation, no material could be found out to incorporate a charge under Section 55(i) of the Act.
11. Learned counsel for the appellant drew my attention to Section 15 of the Act, which reads as follows :
“ 15. Sale of liquor or intoxicating drug without licence prohibited, Power to exempt toddy :- No liquor or intoxicating drug shall be sold without a licence from the Commissioner, provided that a person having the right to the toddy drawn from any tree may sell the same without a licence to person licensed to manufacture or sell toddy under this Act.
Provided also that the Government may by notification declare that any or all of the provisions of this Act, shall not apply in any local area to trees tapped, or to toddy drawn under such conditions as the Government may prescribe.
Nothing in this section applies to the sale of any foreign liquor legally procured by any person for his private use and sold by him or by auction on his behalf or on behalf of his representatives in interest upon his quitting a station, or after his decease.”
12. Proviso to the Section would show that sale of any foreign liquor legally procured for a person's private use is not prohibited, if the person was about to quit the station or by his representatives, after death of the person. It is clear from the above provision that the origin of the liquor must be lawful and the said person should have procured it for his private use. In this case, the prosecution allegation is that the appellant was storing liquor for the purpose of sale. Strategy taken at the time of defence was a total denial. The appellant has no case that he stored liquor for his private use. But, that will not absolve the prosecution of its burden to establish that the appellant stored liquor for the purpose of sale. Therefore, I find that conviction of the appellant under Section 55(i) of the Act is unsustainable.
13. Section 55(a) of the Act deals with 'imports or exports' and for that purpose any transport, transit or possession of liquor. There is no allegation that the appellant was engaged in importing or exporting liquor and for that purpose he possessed the liquor. It is also contended by the learned counsel for the appellant that Ext.P1 and the testimony of PW1 would show that torn pieces of labels issued by Kerala State Beverage Corporation (in short 'K.S.B.C') could be seen on the bottles recovered from the possession of the appellant. Learned Public Prosecutor contended that merely because there were some pieces of sticker on the bottles, it cannot be presumed that they were purchased from an authorized outlet of K.S.B.C. It is the contention of the Public Prosecutor that the appellant should have produced bills to show the legal origin of the liquor. I have carefully gone through the occurrence report, final report, Ext.P1 seizure mahazar and testimony of PW1. None of them would show that the appellant stored illicit liquor so as to implicate him with an offence under Section 55(a) of the Act.
14. Learned counsel for the appellant placed reliance on Mohanan v. State of Kerala ( 2007(1) K.L.T 845) to contend a proposition that if at all the entire prosecution case is accepted, the offence alleged against him will only fall within Section 13 r/w Section 63 of the Act. Section 13 of the Act prohibits possession of liquor or intoxicating drug in excess of the quantity prescribed by the Government. Section 63 is a residuary penal provision, which deals with offences not otherwise provided for. It is established from the testimony of PW1 and the recitals in Ext.P1 that 3.9 litres of liquor was recovered from a house-cum-shop building in the possession of the appellant. Questions raised regarding his possession of the building has been satisfactorily answered by the prosecution evidence. Therefore, the liquor recovered from the possession of the appellant clearly exceeded the permitted limit. Hence, he is liable to be convicted for offence under Section 13 r/w Section 63 of the Act. The conviction clamped on the appellant under Sections 55(a) & (i) of the Act cannot be sustained in the light of the above discussion.
In the result, the appeal is partly allowed. Conviction of the appellant under Sections 55(a) & (i) of the Abkari Act by the Additional Sessions Court (Adhoc- II ), Thrissur is hereby set aside. He is convicted for an offence punishable under Section 13 r/w Section 63 of the Act. The appellant shall undergo rigorous imprisonment for a period of three weeks and to pay a fine of Rs.5,000/- (Rupees five thousand only) for the said offence. In default, he shall undergo simple imprisonment for a further period of one month. 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.
amk Sd/- A.HARIPRASAD, JUDGE.
//True copy// P.A to Judge