By challenging the conviction imposed by the trial court under Section 55(a) of the Abkari Act (in short, “the Act”), the accused has come up in this appeal.
2. Facts, in nut-shell, are as follows: On 13.09.1999 at about 16.30 hours, the appellant was found in possession of 48 bottles of Indian Made Foreign Liquor (in short, “IMFL”) at Kunjathur, a border village in Kasaragod District, with inscriptions 'For sale in Karnataka' on the labels fixed on the bottles. Prosecution, therefore, alleged that the appellant is guilty of the aforesaid offence.
3. The trial court examined three witnesses and marked seven documents on the side of prosecution. MO1 series are the 45 bottles of whisky allegedly recovered from the appellant. There was no defence evidence.
4. Relevant portion of the penal provision reads as follows:
“55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or xxxxxxx shall be punished.-
(1) for any offence other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh xxxxxxx.”
5. Heard Shri Aneesh Joseph, the learned counsel for the appellant and Shri K.K.Rajeev and Ms.Madhu Ben, the learned Public Prosecutors.
6. Learned counsel for the appellant contended that there is no legal justification in convicting the appellant under Section 55(a) of the Act with insufficient evidence, both quantitatively and qualitatively. According to him, the allegation purported to be raised by the prosecution against the appellant is that he imported IMFL from Karnataka for the purpose of sale in Kerala and thereby violated the statutory provisions. None of the prosecution witnesses has proved that the appellant imported liquor, contended the learned counsel. Besides, there is no evidence to hold that the liquor bottles allegedly recovered from the possession of the appellant were not intended for sale in Kerala. Hence, the foundation of the prosecution case is shaky, contended the learned counsel for the appellant.
7. Before dealing with the legal aspects involved in this case, I shall go through the evidence available in the records. PW1 is the independent witness cited to prove the search and seizure. He admitted his signature in Ext.P1 mahazar. But, he stated that it was not read over to him. Further, he did not know Malayalam. In spite of cross-examination, the Prosecutor could not elicit any answer to impeach his truthfulness.
8. PW2 is the witness to the scene mahazar (Ext.P2). He also stated that he was illiterate in Malayalam.
9. PW3 is the detecting officer. At the time of detection, he was working as Sub Inspector of Police, Manjeswaram. According to his testimony, on 13.09.1999 in the evening, he along with Police party went for law and order patrol duty. At about 16.30 hours, he saw the appellant disembarking from a bus at Kunjathur bus stop. The appellant was carrying a sack on his head. Body language of the appellant evoked suspicion in the mind of PW3. He restrained the appellant and questioned. On examination of the sack possessed by the appellant, it was found that he was carrying 48 bottles of IMFL, apiece containing 180 ml. liquor. The accused was arrested at 16.45 hours. Arrest memo is Ext.P3. Two bottles were taken as samples and they were properly sealed. Thereafter, Ext.P1 seizure mahazar was prepared from the place of detection. The appellant and the contraband were moved to Police Station and the case was registered. First information report is Ext.P4. PW3 himself conducted the investigation. The appellant was produced before the court without delay.
10. Ext.P5 is the property list and Ext.P6 is the forwarding note submitted before the court for sending the sample for chemical analysis. Ext.P7 is the analysis report showing that the sample sent for analysis contained about 43% ethyl alcohol. PW3 identified MO1 series also. This witness was cross-examined at length. From his evidence, it is clear that the appellant came in a bus from Mangalore and alighted at Kunjathur. PW3 stated in cross-examination that in the property list he has only mentioned the brand name of the IMFL and the quantity. In fact, he deposed that only a brief description of the liquor seized alone was mentioned in the property list. It is pertinent to note that PW3 has not explicitly or implicitly deposed that the accused imported IMFL into the State of Kerala and further, the IMFL allegedly possessed by the accused was intended for sale in the State of Karnataka only.
11. The recitals in Ext.P1 seizure mahazar are almost in tune with the deposition of PW3. In the list of property shown in Ext.P1, it is mentioned that 48 bottles, each containing 180 ml. IMFL with brand name 'original choice fine whisky' were recovered from the appellant and there was an inscription on the labels that they were meant for sale in Karnataka. It is relevant to note here that the labels were not intact at the time of trial. On the basis of this recital in Ext.P1 seizure mahazar, Shri Rajeev, the learned Public Prosecutor, contended that even though PW3 did not depose that the appellant possessed imported IMFL, the recitals in Ext.P1 will fill up the lacuna. In other words, absence of oral evidence to prove import of liquor may not be treated fatal to the prosecution case as long as the recitals in the seizure mahazar, contemporaneously prepared, are capable of proving that fact. On hearing the arguments of the learned Public Prosecutor, a serious doubt arose in my mind whether the principle of exclusion of oral evidence by documentary evidence contained in Sections 91 and 92 of the Evidence Act will be attracted in this case, if the prosecution attempted to adduce oral evidence to prove the recitals in Ext.P1 as well as the above said writing on the labels on IMFL bottles. It is to be borne in mind that the crux of the offence under Section 55(a) of the Act, insofar as this case is concerned, is import of IMFL to the State of Kerala. The question is whether that fact can be proved by mere production of the bottles with labels showing a writing 'For sale in Karnataka' and also by Ext.P1 mahazar, wherein that fact is simply mentioned. Is it necessary for the prosecution to prove the allegation of import of IMFL by the appellant as a material fact, de hors the production of the bottles with the above said labels thereon and Ext.P1. Now I may quote the portions of Sections 91 and 92 of the Evidence Act which are relevant for the decision of this case. The exceptions and explanations to Section 91 and provisos to Section 92 have been omitted.
“91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.-When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:”
I heard the learned counsel on both sides on this point elaborately. Learned counsel for the appellant cited a decision rendered by the Full Bench of Madras High Court in Solai Naik and another v. Emperor (ILR Vol.XXXIV Madras 349). The Full Bench while answering a reference, interpreted Section 103 of the Code of Criminal Procedure, 1898. The question referred to the Full Bench for determination was thus:
“..... Whether, when a search has been conducted and section 103, Criminal Procedure Code, any evidence can be given regarding the things seized in the course of the search and regarding the places in which they were respectively found other than the list which the law in the section directs to be drawn up containing these particulars.”
The words ‘any matter required by law to be reduced to the form of a document’ occurring in Section 91 of the Evidence Act was interpreted by the court in the following words:
“In our opinion the words “any matter required by law to be reduced to the form of a document” could not have been intended by the legislature to apply to mere observation of physical facts which under the ordinary law has to be proved by testimony in Court. All the instances in which this section has been applied are cases in which the matter required to be reduced to the form of a document consisted of spoken words or other expressions of the human will. We do not, however, express any positive opinion that the application of the words is to be confined to such cases, but we are quite clear that, as laid down in Jivandas Keshavji v. Framji Nanabhai ((1870) 7 B.H.C.R. 45 at P.63), if the narrative of an extrinsic fact as in this case has been committed to writing it may be proved by parol evidence and this would be so even though such writing is required by law. We need hardly point out that if the provisions of section 91 were to apply to the case of a search list prepared under section 103, Criminal Procedure Code, the results would be startling and there would be grave risks of miscarriage of justice in many trials in criminal cases.”
12. Shri K.K.Rajeev cited a decision rendered by a Bench of learned three Judges of the Supreme Court in Bai Hira Devi and others v. Official Assignee of Bombay (AIR 1958 SC 448). Hon’ble Mr.Justice P.B.Gajendragadkar, in His Lordship's inimitable style, has explained the similarities and dissimilarities of Sections 91 and 92 of Evidence Act in the following words:
“......... The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the "best evidence rule." This best evidence about the contents of a document is the document itself and it is the production of the document that is required by S. 91 in proof of its contents. In a sense, the rule enunciated by S. 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.
5.Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under S. 91; in other words, it is after the document has been produced to prove its terms under S. 91 that the provisions of S. 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisos to this section with which we are not concerned in the present appeal. It would be noticed that Ss. 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of S. 92 and S.92 would be inoperative without the aid of S.91. Since S. 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under S. 91, it may be said that it makes the proof of the document conclusive of its contents. Like S. 91, S. 92 also can be said to be based on the best evidence rule. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas S. 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike S. 92 the application of which is confined only to bilateral documents. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that S. 92 does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by S. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of S. 99 itself. Section 99 provides that "persons who are not parties to a document or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document." Though it is only variation which is specifically mentioned in S. 99, there can be no doubt that the third party's right to lead evidence which is recognized by S. 99 would include a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them.”
Subsequently, the Supreme Court in Roop Kumar v. Mohan Thedani (AIR 2003 SC 2418) followed the above said decision and reiterated the principles.
13. I came across another decision of the Apex Court touching this aspect in R.Janakiraman v. State represented by Inspector of Police, CBI, SPE, Madras ((2006) 1 SCC (Cri) 442), wherein the Supreme Court, in paragraph 24 of the decision, culled out the principles regarding Section 92 of the Evidence Act in the following words:
“ We may cull out the principles relating to Section 92 of the Evidence Act, thus:-
(i) Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91.
ii) The rule contained in Section 92 will apply only to the parties to the instrument or their successors-in- interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also.
iii) The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.
Applying the aforesaid principles, it is clear that the bar under Section 92 will apply to a proceeding inter partes to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon.”
(underline supplied) The ratiocination, therefore, is that Section 91 of the Evidence Act insists that in a matter reduced to the form of a document, no evidence can be given in proof of the terms of such matter, except the document itself or secondary evidence of its contents, in case in which the secondary evidence is admissible under the provisions contained in the Act. Sections 91 and 92 of the Evidence Act should be read conjunctively and they mutually supplement each other. As mentioned above, it is evident that the bar of adducing oral evidence against the contents of a document is only against the party claiming under the document. By applying the principles stated in Solai Naik's case (supra) decided by the Full Bench of Madras High Court, it can only be seen that the appellant cannot be treated as a party to the document, viz., the seizure mahazar. It is a document unilaterally created by the prosecution to establish the factum of detection of offence and the formalities complied with thereof. There is no legal fetter for the accused to challenge the veracity of the seizure mahazar, unlike in the case of a confession properly recorded by a Magistrate under Section 164 Cr.P.C. (see- Emperor v. Gulabu - ILR (1913) 35 All.260) or when previous deposition is produced in a trial of an accused for perjury (Mohammed Farooq v. Rex through Tufail Ahamed - AIR 1950 All. 501). The contention of the Prosecutor, that since the seizure mahazar is a document prepared contemporaneous to the detection, due weight should be attached to it, cannot be disputed. However, it shall not be a legal reason to hold that the facts mentioned in the seizure mahazar can be taken as proved by production simplicitor of the said document. It is indisputable that in a system of adversarial criminal trial, the primary burden is on the prosecution to establish beyond reasonable doubt that the accused has committed the offence. That includes proof of the essential ingredients of the offence as well. Prosecution in this case alleges that the appellant unlawfully imported liquor. Alleged import of liquor is the basic fact required to be proved to attract the offence. Hence, it has to be proved by legally recognizable evidence. True, there may be difficulties for getting documentary evidence to prove such facts. So, it can be proved by assertions on oath by the prosecution witnesses in the form of oral evidence. Then such assertions of the witnesses can be tested by cross- examination. No doubt, the seizure mahazar in that case will corroborate the parol evidence. Without venturing to prove the elementary facts constituting the offence, the prosecution cannot rely on Ext.P1, mahazar or on the writing on the bottles to prove the case of import of IMFL.
14. It is relevant to note that Section 64 of the Act may come into play in certain cases, wherein the prosecution establish the essentials of the offence. And in that event, the onus may shift to the accused to rebut the presumption in Section 64 of the Act. But, no prosecution can start simply from a presumption. In other words, without proving the basic ingredients of the offence, no prosecution will lie against an accused (see - Sidhan @ Sidharthan v. State of Kerala (2014 (2) KLT 893). PW3, the detecting officer, is bound to establish the factum of detection of the offence and the acts performed by him as part of investigation to inculpate the accused. Those acts performed by him, even if they are recited in Ext.P1, ipso facto will not be proved by mere production of Ext.P1 seizure mahazar before the court. The detecting officer will have to depose before the court that he had conducted a search and effected seizure of the contraband from the possession of the appellant, which was imported into the State of Kerala. Ext.P1 seizure mahazar may be used to corroborate the testimony of the detecting officer regarding the steps taken by him while detecting the offence. Hence, I am of the view that in the absence of any evidence to find that the liquor allegedly possessed by the appellant was imported in violation of the provisions of the Act, merely for the reason that there is a writing in Ext.P1 mahazar or that the labels on the bottles contained a description 'for sale in Karnataka', it cannot be stated that the prosecution has discharged its burden of proving the guilt.
15. Learned Prosecutor relied on Rule 9 of the Foreign Liquor Rules, which prohibits import. The argument raised by the learned Prosecutor is that the writing on the label coupled with the prescriptions in Rule 10 of the Kerala Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 would show that the appellant had imported liquor in violation of the Act and Rules. It is true that Rule 10(6)(vii) of the Kerala Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 indicates the essential facts to be described on the label. It reads as follows”
“10. Bottling.-
xxxxxx (6) After the bottles are filled with liquor they shall immediately be corked and sealed or fitted with filter proof caps and affixed with a label which shall contain the following particulars namely:-
xxxxxxx (vii) the warning, in English and Malayalam “ALCOHOL CONSUMPTION IS INJURIOUS TO HEALTH - മദ പ"ന$ ആര("ഗ ത+ന ഹ"ന+ക( $” is to be printed in contrasting colours clearly visible and each letter having a dimension of not less than 0.3 centimetres for 750 Ml. bottles and above, and 0.2 centimetres for 180 Ml. bottles and above.”
This provision was subsequently amended in 2010 adding one more aspect, viz., “drunken driving is punishable - മദ പ+ച1 വ"ഹനരമ"ട+ക5നത ശ+ക"രഹമ" ണ”. Absence of this sentence may not be material in our case as the detection of the offence was prior to 2010. It is the prosecution case that none of the essential conditions had been satisfied in respect of the bottles recovered from the appellant. But, there is no allegation either in Ext.P1 seizure mahazar or in the testimony of PW3 that considerably large quantity of liquor recovered from the appellant was brought into the State of Kerala in violation of the Act and the Rules. At the time of evidence, PW3 clearly deposed that the labels described in the seizure mahazar could not be found on the bottles at the time of trial.
Therefore, the trial court did not even get an opportunity to verify whether the recitals in Ext.P1 were proper or not.
16. Learned Prosecutor contended that Section 64 of the Act will come into play in this case and the appellant should explain how he was lawfully entitled to possess that much quantity of IMFL. I am unable to agree with this argument. In the absence of any evidence adduced by the prosecution to establish the essential ingredients of Section 55(a) of the Act, the onus will not shift to the appellant to establish his innocence.
17. Learned Prosecutor further contended that the appellant should be seen guilty under Section 58 of the Act. The said Section has two limbs. The first limb deals with possession of any quantity of liquor knowing the same to have been unlawfully imported, transported or manufactured. Second limb of the Section deals with possession of liquor by a person knowing that duty, tax or rental payable under the Act had not been paid therefor. Neither in Ext.P1 nor in the testimony of PW3, I could find any allegation to hold that the accused knowingly possessed imported liquor without lawful authority or he possessed liquor knowing that duty, tax, etc. were not paid. In the absence of any allegation and proof, the offence under Section 58 of the Act will not be attracted.
18. Lastly, the learned Prosecutor submitted that at any rate the offence under Section 13 of the Act will be attracted in this case, wherefore he can be convicted under Section 63 of the Act. Here also I am unable to agree, as I find no material to convict the appellant thereunder. In order to punish the appellant under Section 13 read with Section 63 of the Act, (Section 63 of the Act deals with punishment for offences not otherwise provided for in the statute), it has to be established that the accused, not being a licensed manufacturer or vendor of liquor, was in possession of any quantity of liquor in excess of such quantities as the Government may from time to time prescribe by notifications. Here in this case, abstract of the allegations, though not satisfactorily proved, is that the appellant imported liquor from State of Karnataka for the purpose of sale in Kerala. Kernel of the offence under Section 13 of the Act is that the appellant must be in possession of lawfully procured liquor for which the Government must have prescribed the quantity upto which one can possess. As the unestablished allegation is that the appellant possessed liquor, which was unlawfully imported to the State, the offence under Section 13 of the Act per se will not be attracted. Therefore, this submission also cannot be accepted.
19. In the light of the above discussion, I find that the prosecution has not established that the appellant is guilty of an offence under Section 55(a) of the Act though there is some evidence to show that he was found in possession of liquor. In the absence of establishing the essential ingredients for convicting the appellant, I find that he is eligible to claim an acquittal.
In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in Sessions Case No.612 of 2000 on the file of Additional Sessions Court (Adhoc) II, Kasaragod is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bonds are cancelled. If the appellant had deposited any amount as a condition for suspending the sentence, it shall be refunded to him.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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