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2012 DIGILAW 798 (KER)

Josekutty v. State of Kerala

2012-08-21

M.SASIDHARAN NAMBIAR, P.BHAVADASAN

body2012
ORDER M. Sasidharan Nambiar, J. 1. The revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs. 15,000/- for the offence under Section 58 of the Kerala Abkari Act by the Judicial First Class Magistrate-11, Thamarassery, in CC No. 203/97. The prosecution case was that the accused was in possession of 5 litres of illicit arrack in a plastic can. Though the petitioner filed an appeal before the Sessions Court, confirming the conviction and sentence, it was dismissed. The revision petition is filed, challenging the legality and propriety of the conviction and sentence. The learned Single Judge referred the Criminal Revision Petition to the Division Bench for a decision on the following questions: "a) Does Rajeevan v. Excise Inspector 1995 K.H.C. 10: 1995 (1) KLT 38 or Purushan v. State of Kerala 2002 KHC 492: 2002 (2) KLT 661 : ILR 2002 (3) Ker. 315: 2002 CriLJ 3523 lay down the law correctly? b) Cannot Section 58 apply to the transporter in possession with requisite culpable knowledge or is that section applicable only to persons who subsequently came into possession?" According to the learned Single Judge, there is conflict of views in the decisions in Rajeevan (supra) and Purushan (supra) and though a Division Bench of this Court in Surendran v. Excise Inspector 2004 KHC 72: 2004 (1) KLT 404 , affirmed both the decisions, the apparent conflict in the views in Rajeevan (supra) and Purushan (supra) were not taken note of. The learned Single Judge is also of the opinion that this conflict was not considered by the later Division Bench in Mohanan v. State of Kerala 2007 (1) KHC 752 : 2007 (1) KLT 845 : ILR 2007 (1) Ker. 687: 2007 (1) KLJ 436 . It is to resolve this controversy, a reference was made to the Division Bench, stating that the Division Bench may consider the question afresh or refer it to a larger Bench. 2. The learned counsel appearing for the revision petitioner, relying on the Full Bench decision of this Court in Peter v. Sara 2006 KHC 1450: 2006 (4) KLT 219 : ILR 2006 (4) Ker. 157: AIR 2007 Ker. 2. The learned counsel appearing for the revision petitioner, relying on the Full Bench decision of this Court in Peter v. Sara 2006 KHC 1450: 2006 (4) KLT 219 : ILR 2006 (4) Ker. 157: AIR 2007 Ker. 81 , argued that a Single Judge is bound to follow the Division Bench ruling and when the question was answered twice by the Division Bench, reference to the Division Bench is not contemplated and hence there is no necessity to answer the reference. The learned counsel also argued that the petitioner was charged and convicted only for the offence under Section 58 of the Kerala Abkari Act and therefore, the question of applicability of Section 55(a) of the Kerala Abkari Act does not arise for consideration and in any case, there is no conflict in the views in Rajeevan (supra) and Purushan (supra) and therefore, there is no necessity to reconsider the earlier Division Bench decisions. The learned counsel, on the facts, stated that when neither in the final report nor at the time of evidence, the prosecution has a case that the petitioner was in possession of the can containing illicit liquor, with the knowledge that it is illicit liquor, Section 58 of the Kerala Abkari Act has no application and he could be convicted only for the offence under Section 63 of the Kerala Abkari Act. The learned counsel relied on an unreported decision of this Court in Crl RP No. 1674/2002. The learned counsel submitted that there is no conflict of views in Rajeevan (supra) and Purushan (supra) and therefore, no reconsideration of the earlier Division Bench decisions is warranted. The learned Public Prosecutor also submitted that there is no divergent views in Rajeevan (supra) and Purushan (supra) and the law laid down in Surendran (supra) and Mohanan (supra) does not warrant reconsideration. 3.Though the learned Single Judge is of the opinion that there is conflict in the views in Rajeevan and Purushan, we find no such conflict of views. Though there was conflict in the views in Rajeevan (supra) and Meenakshi v. Excise Inspector 1995 KHC 134: 1995 (1) KLT 738 : 1995 (1) KLJ 573 : ILR 1995 (3) Ker. 183, that conflict was resolved by the Division Bench in Surendran v. Excise Inspector 2004 KHC 72: 2004 (1) KLT 404 . Though there was conflict in the views in Rajeevan (supra) and Meenakshi v. Excise Inspector 1995 KHC 134: 1995 (1) KLT 738 : 1995 (1) KLJ 573 : ILR 1995 (3) Ker. 183, that conflict was resolved by the Division Bench in Surendran v. Excise Inspector 2004 KHC 72: 2004 (1) KLT 404 . The decision in Purushan (supra) was also considered by the Division Bench in Surendran (supra). The Division Bench disagreed with the view taken in Meenakshi (supra) and upheld the view in Rajeevan anc Purushan (supra). The learned Single Judge in Rajeevan found that Section 58 of the Kerala Abkari Act deals with possession of illicit liquor or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and on a plain reading or Section 55, it is clear that whoever in contravention of the Act or any Rule or Order made thereunder or of any licence or permit obtained under the Act, imports, exports and incident thereto transports, transits or possesses liquor or any intoxicating drugs, commits an offence punishable under Section 55(a). While arriving at the said view, the learned Singe Judge noted that the words "transports, transits or possesses" in sub-section (a) of Section 55 were substituted by Act 10 of 1975, with the object of regulating movements of liquor and intoxicating drugs throughout the State. The relevant portion of the decision in Rajeevan (supra) reads: "On a plain reading of the section, it is clear that whoever in contravention of the Act or any rule or order made thereunder or of any licence or permit obtained under the Act "imports", "export" and incidental thereto "transport, transits or possesses" liquor or any intoxicating drugs, commits an offence and on conviction, is liable to punishment as prescribed. It is such possession of liquor in connection with or in the course of import, export or movement from one State to another State or territories of this State, which is made penal under Section 55(a). Section 58 deals with "possession of illicit liquor" or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and that is made punishable. The words possesses-possession used in these sections are in different contexts as is quite obvious." 4. Section 58 deals with "possession of illicit liquor" or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and that is made punishable. The words possesses-possession used in these sections are in different contexts as is quite obvious." 4. Another learned Single Judge in Purushan (supra), taking note of the said observation in Rajeevan (supra), held that the words "transports, transits or possesses" were not substituted in sub-section (a) of Section 55 by Act 10 of 1975 and in the section, as it originally stood, the words "imports, exports, transports or possesses" were there and only the word "transits" was inserted by the Amendment Act 10 of 1975, in between the words "transports or possesses". That was the only distinction made in Purushan (supra) from the view taken in Rajeevan (supra). The view taken in Purushan (supra) was also that the possession contemplated under Section 55(a) is in the course of import, export, transport or transit. The relevant portion of the decision in Purushan (supra) reads: "I have seen the amendment of 1975. What is introduced through the amendment is only the word "transit" in Section 55 between the words "transports or possesses". Even under the Act, as it originally stood, the words "imports, exports, transports or possesses" liquor were already there. The question will then arise how and why possession of liquor is made liable to different punishments under Sections 55(a) and 58. I am of the view that the answer can be got by a careful reading of the sections, as it originally stood. The word "possesses" appearing in Section 55(a) comes in the context of the preceding words "imports, exports and transports". What is contemplated there, is possession in the course of the said activities. The heading given to the section itself reads as "for illegal import, etc". The higher punishment contemplated in Section 55(a) obviously is taking into account the fact that possession of liquor intended there is in the course of the activities mentioned earlier viz., imports, exports and transports. On the other hand, in Section 58, possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. On the other hand, in Section 58, possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. What is the distinguishing factor is that for the offence under Section 58, the person in possession has knowledge of the fact that the liquor was unlawfully imported, transported or manufactured or is knowing that the duty, tax or rental payable under the Act had not been paid. The possessor therein is not directly involved in the process of import, export or transport and all that he knows at the time of holding possession of the liquor is the fact that the liquor had not come through genuine source, but it had already been unlawfully imported, manufactured or transported. It is such possession that is made liable to a lesser punishment under Section 58. The Court has therefore to carefully analyse the pleading in the complaint as also the evidence adduced to see whether the possession in question was in the course of import, export, transport (or transit in the case of offence after the amendment) or whether it was merely with the knowledge that somebody else had imported transported or manufactured the same some time back or knowing that duty, tax or rental payable under the Act had been evaded." 5. The Division Bench, in Surendran (supra) considered the decisions in Rajeevan, Purushan and Meenakshi and held that if the view taken in Meenakshi (supra) is accepted, the result would be that when a person in possession of liquor, with the knowledge that it has been unlawfully imported, transported or manufactured or without paying duty etc., the sentence would be less, while in a case where there is mere possession without knowledge of any other illegality, the sentence would be higher and such an intention of the Legislature cannot be attributed. It was therefore, held that "the case shall fall within the ambit of Section 55(a) of the Act, only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods. In the case of possession with the knowledge of goods having been illegally imported, manufactured, it would fall within the mischief of Section 58 of the Abkari Act. In the case of possession with the knowledge of goods having been illegally imported, manufactured, it would fall within the mischief of Section 58 of the Abkari Act. The Division Bench held that the view expressed in the decisions in Rajeevan and Purushan is correct. Another Division Bench in Mohanan (supra) considered the same question again and followed the decision in Surendran (supra). We find no conflict in the views in Rajeevan and Purushan, as observed by the learned Single Judge. In such circumstances, we find no reason to either reconsider the earlier decisions in Surendran (supra) or Mohanan (supra) or to refer the question to the Full Bench. 6. As rightly pointed out by the learned counsel appearing for the petitioner, when s Single Judge is bound to follow the Division Bench decisions, a reference to the Divisior Bench is not called for, for the reason that the views of the Division Bench are not in agreement with his views. A Division Bench of this Court in Kannappan v. R. T.O. Emakulam 1988 KHC 245: 1988(1) KLT 902 : ILR 1988(2) Ker. 572 considered this question and held: "There can be no "hesitation" for a Single Judge to follow a Division Bench ruling binding on the Single Bench for he is bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the hands of the Division Bench does not mean that whenever the identical question is raised before the learned Judge, the matter has to be again referred to a Division Bench till the views of the Single Judge are endorsed by a Division or Full Bench. Brought up in the highest traditions of judicial discipline, this Court cannot at any time swerve from the path of judicial decorum and propriety " Following the said dictum laid down in Kannappan's case, the Full Bench of this Court held that under Section 3 of the Kerala High Court Act, a Single Judge has no power to refer a case to a Full Bench and that power is expressly reserved to a Bench of two Judges under Section 4 of the Act. In the light of the Division Bench decision of this Court in Kannappan (supra) and the Full Bench decision in Peter (supra), reference of the question by the learned Single Judge does not arise, to reconsider the Division Bench decision in Surendran and Mohanan. 7. The learned counsel appearing for the petitioner argued that the facts of the case reveal that the petitioner was found in possession of five litres of illicit arrack in a can and when there is no allegation in the final report or during the recording of the evidence that petitioner was in possession of the liquor with the knowledge that it is illicit liquor, an offence under Section 58 of the Kerala Abkari Act is not applicable and Section 63 of the Kerala Abkari Act alone will apply. The learned Single Judge of this Court considered this question in CrIRP No. 1674/02 and held: "6. Then the question is what is the offence committed. The evidence establishes that petitioner was in possession of three litres of illicit arrack. Section 58 of the Abkari Act provides punishment for possession of illicit liquor. Under Section 58 who ever without lawful authority has in his possession any quantity of liquor or any intoxicating drug knowing the same to have been unlawfully imported, transported or manufactured or knowing the duty tax or rental payable not have been paid thereof, shall be publishable as provided therein. Therefore, to attract an offence under Section 58 of the Act, the accused must be in possession of any quantity of liquor or any intoxicating drug without lawful authority, knowing the same to have been unlawfully imported, transported or manufactured or knowing that the tax duty or rental payable under the Act has not been paid. As is clear from the section, mere possession of any quantity of liquor or intoxicating drug by itself is not sufficient to convict a person for the offence under Section 58. The possession must be first without lawful authority and secondly with the knowledge that it has been either unlawfully imported or unlawfully transported or unlawfully manufactured. Possession of an unlawfully manufactured liquor like the illicit arrack, is made punishable under Section 58 of the Act, if that possession is with the knowledge that it is unlawfully manufactured. The possession must be first without lawful authority and secondly with the knowledge that it has been either unlawfully imported or unlawfully transported or unlawfully manufactured. Possession of an unlawfully manufactured liquor like the illicit arrack, is made punishable under Section 58 of the Act, if that possession is with the knowledge that it is unlawfully manufactured. Therefore, the essential ingredients of the offence are (1) possession of illicit liquor (2) with the knowledge that it is unlawfully manufactured. 7. The charge against the petitioner was under Section 55(a). Ingredients of an offence under Section 55(a) was import, export, transport, transit or possess liquor or any intoxicating drug, in contravention of the Act or any rule or order made under the Act. The allegation as against the petitioner is limited to possession of illicit liquor in contravention of the Act or rule or order made under the Act. That possession contemplated under Section 55, though must be in the course of import or export, possession need not be with the knowledge, as is the case with Section 58. Consequently, in the charge framed against the petitioner, there is no allegation that petitioner has been in possession of the liquor with the knowledge that it was illegally manufactured. Question is whether in the absence of a positive allegation that petitioner was possessing illicit liquor knowing that it was unlawfully manufactured, an offence under Section 58 is attracted. Though Section 64 of the Act provides for the presumption to be drawn, before Section 58 along with Sections 55B, 56A, 57,58Aand 58B were inserted, by the Act 16 of 1997 w.e.f. 03/06/1997, presumption cannot be drawn in respect of the offence under Section 58, by re-course to Section 64 of the Act. Therefore, fact that an accused has been in possession of the illicit liquor by itself is not sufficient. Possession must be knowing that it has been unlawfully manufactured. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession "with the knowledge that it has been unlawfully manufactured", Section 58 cannot be attracted. Division Bench in Surendran's case (supra) considered this aspect, in paragraph 12 and held. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession "with the knowledge that it has been unlawfully manufactured", Section 58 cannot be attracted. Division Bench in Surendran's case (supra) considered this aspect, in paragraph 12 and held. "Learned counsel appearing for the petitioner has specifically stated before us that there was not even a suggestion that petitioner was aware of the fact that it had been illegally imported or manufactured or that duty etc. has not been paid. Thus it appears that even the ingredients of Section 58 are not satisfied." When Section 58 mandates that to attract the offence, the person has to be in his possession of any quantity of liquor or any intoxicating drug "knowing the same have been unlawfully imported, transported or manufactured". In the absence of a specific allegation in the complaint/final report, that petitioner has been in possession of liquor, knowing that it was unlawfully manufactured, she cannot be convicted for the offence under Section 58 of the Abkari Act. That exactly is the case herein. Except stating that in contravention of the Act petitioner was found in possession of illicit arrack, there is no allegation in the charge that petitioner has been in possession of liquor, with the knowledge that it was unlawfully manufactured. Allegation that is illicit liquor by itself will not attract an offence under Section 58, in the absence of a case that petitioner was aware that it is unlawfully manufactured. There may be a case where 'A' entrust a can to 'B' and it was seized from the possession of 'B'. 'B' may not be aware the contents of the can. 'B' is unaware of the fact that the can contains unlawfully manufactured liquor. Can 'B' be prosecuted for the offence under Section 58, in the absence of an allegation that 'B' has been in possession of the can containing unlawfully manufactured liquor, with the knowledge that it contained unlawfully manufactured liquor. If presumption under Section 64 could be drawn, definitely 'B' could be prosecuted. Can 'B' be prosecuted for the offence under Section 58, in the absence of an allegation that 'B' has been in possession of the can containing unlawfully manufactured liquor, with the knowledge that it contained unlawfully manufactured liquor. If presumption under Section 64 could be drawn, definitely 'B' could be prosecuted. But in a case where Section 64 has no application, as in this case as Section 64 then stood in the absence of a specific case that 'B' has been in possession of the can containing liquor with the knowledge that it is unlawfully manufactured, he cannot be prosecuted for the offence under Section 58. That exactly is the case herein. Prosecution cannot depend on the defence to be taken by the accused and based on the weakness of the defence case, an accused cannot be convicted for the offence. It is up to the prosecution to allege that petitioner has been in possession of MO 1 can containing illicit arrack, with the knowledge that it was unlawfully manufactured. When there is no allegation in the complaint and neither PW 1 nor PW 2 had given evidence that petitioner has been in possession of MO 1 can with the knowledge that it contained unlawfully manufactured liquor, she cannot be convicted for the offence under Section 58 of Abkari Act. 8. But still petitioner is liable to be convicted as provided under Section 63 of the Act. Section 63 provides that whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act and not otherwise provided for in the Act shall, on conviction be punished for each such willful Act or omission with fine which at the time was of commission of the offence may extend to rupees two thousand. By Act 4 of 1996 which came into force on 27/03/1996, after clause 6 of Section 3, clause 6A was inserted defining arrack. Section 8 was also inserted providing prohibition of manufacture, import, export, transport, transit possession, storage and sale of arrack. Under Section 8, no person shall manufacture or import, export, transport, transit, possess storage, distribute, bottle or sell arrack in any form. Therefore, by virtue of Section 8 there is a prohibition for possessing arrack in any form came into force w.e.f. 27/03/1996. Under Section 8, no person shall manufacture or import, export, transport, transit, possess storage, distribute, bottle or sell arrack in any form. Therefore, by virtue of Section 8 there is a prohibition for possessing arrack in any form came into force w.e.f. 27/03/1996. It was only by amendment Act 16 of 1997, which came into effect on 03/06/1997 subsection (2) of Section 8 was inserted after renumbering original Section 8 as sub-section (1) of Section 8 providing punishment for contravention of sub-section (1) of Section 8. Therefore, before 03/06/1997, no specific punishment was provided for contravention of the provisions of Section 8 as it then stood. Possession of illicit arrack was on 19/05/1997. In such circumstances, petitioner could only be convicted and sentenced as provided under Section 63 of the Abkari Act." We are in agreement with the said view. 8. The final report submitted shows that there is no allegation that the petitioner was in possession of the illicit liquor with the knowledge that it is illicit liquor. So also, none of the prosecution witnesses has a case that petitioner had the knowledge that he was holding a can containing illicit liquor. In such circumstances, possession of liquor with the knowledge that it is illicit liquor, cannot be assumed. Hence, in the absence of evidence, petitioner can only be convicted for the offence under Section 63 of the Kerala Abkari Act. Section 63 as it then stood, provides only the sentence of fine. The learned counsel for the revision petitioner submitted that the revision petitioner is no more. The learned Public Prosecutor also submitted that the revision petitioner died on 24/04/2003. In such circumstances, there cannot be a default sentence. 9. The revision petition is allowed in part. The conviction of the petitioner for the offence under Section 58 of the Kerala Abkari Act by the Judicial First Class Magistrate Court-ll, Thamarassery in CC No. 203/97 is modified to under Section 63 of the Kerala Abkari Act. The sentence is modified to a fine of Rs.2,000/- (Rupees Two Thousand only). Judicial First Class Magistrate Court-ll, Thamarassery is directed to realise the fine, as provided under Section 421 of the Code of Criminal Procedure from the assets of deceased Criminal Revision Petitioner.