IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.Rev.Pet.No. 280 of 2002() ----------------------------- CC.313/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM CRA.28/1999 of SESSIONS COURT, KOZHIKOE ................................................... REVN. PETITIONER(S): APPELLANT/ACCUED ------------------------------------- SURENDRAN, S/O.APPU NAIR, VALLIYAKUNNUMMAL, KURUVATTOOR AMSOM, POLOOR DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.280 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2009 ORDER The Revision Petitioner is the accused in C.C.No.313/1996 on the file of Judicial Magistrate of First Class, Kunnamangalam and the appellant in Criminal Appeal No.28/1999 of Sessions Court, Kozhikode. He was convicted u/s.58 of the Abkari Act and sentenced undergo simple imprisonment for two months and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) in default to undergo simple imprisonment for one month by the Trial Court. The conviction of the revision Petitioner was confirmed in appeal but the sentence was modified to the effect that substantive sentence was reduced to simple imprisonment for one month. The sentence to pay fine was maintained.The revision petitioner has challenged his conviction and sentence in this revision petition. 2. The case of the prosecution before the Trial Court was that when Pw1, Krishnan, Preventive Officer and Pw2, Viswanathan Nair, Excise Guard along with others were patrolling Kuruvatoor amsom, Poloor desom, they found the accused carrying a plastic bag containing illicit arrack. The accused was arrested on the spot.Pw3 and Pw6 are the Crl.R.P.No.280 OF 2002 Page numbers independent witnesses to the incident who turned hostile. Pw5 is the Excise Inspector who has registered the case. Pw4 is the Assistant Excise Inspector who conducted the investigation and laid charge before the Trial Court. 3. Pw1 to 6 were examined.Exts.P1 to P6 were marked and MO.1 was produced before the Trial Court by prosucution. When questioned u/s.313 of Criminal procedure code by the trial court the accused denied the entire incident. On an appreciation of evidence the trial court found the revision Petitioner guilty of offence punishable u/s.58 of the Abkari Act and convicted and sentenced him as aforesaid. The appellate court confirmed the conviction but modified the sentence as stated above. Now the accused has come up in revision. 4. The only question which arises for consideration whether the conviction of revision petitioner and sentence imposed by the trial court which is modified in appeal can be sustained.The main argument advanced by the counsel for revision Petitioner is that even if the entire prosecution case is believed, the revision petitioner cannot be said to have committed the offence punishable under section 58 of the Abkari Act, that during the relevant period the arrack was not banned and the permissible quantity of arrack that can be possessed by a person was 750 ml and that therefore the Crl.R.P.No.280 OF 2002 Page numbers revision petitioner can be convicted only u/s.63 of the Abkari Act for violation of the order for having been in possession of liquor in excess of the permissible quantity. I find force in the above submission. 5. The incident occurred during 1995. At that time Arrack was not banned. The maximum quantity of Arrack that can be possessed by a person without permit was 750 ml as provided under Government Notificatin SRO No.89/69 dated 9/2/1969. It has been held by a Division Bench of this Court in Surendran Vs. Excise Inspector, 2004(1) KLT 404, that to constitute an offence u/s.58 of the Abkari Act the accused must have knowledge that it was illicit liquor he was carrying. In the present case it was not suggested to Pw1 and Pw2 that the accused was aware of the fact that the liquor he was carrying was illegally imported or manufactured liquor. That being so, the conviction of the Revision Petitioner by both the courts below u/s.58 of the Abkari Act cannot be sustained. He can be found guilty of violation of sections 10 and 13 of Abkari Act and the Government Order SRO 89/69 which is punishable under section 63 of the Act.Therefore I set aside the conviction of the Revision petitioner under section 58 of the Abkari Act by the learned Magistrate which is confirmed by the learned Sessions Judge and convict Crl.R.P.No.280 OF 2002 Page numbers him under sections 10 and 13 of the Abkari Act read with section 63 of the Abkari Act. The maximum sentence prescribed u/s.63 of the Abkari Act prior to the amendment is a fine of Rs.2,000/- (Rupees Two Thousand only). Taking into consideration the fact that accused was found in possession of only 3 liters of arrack, that the incident occurred on 3/8/1995 and in the circumstances of the case I feel that a fine of Rs.1,000/- (Rupees One Thousand only) would meet the ends of justice. In the result the Criminal Revision Petition is allowed. The conviction of the Revision Petitioner u/s.58 of the Abkari Act by the Trial Court and the Lower Appellate Court is set aside. He is convicted under sections 10 and 13 read with section 63 of the Abkari Act and sentenced to pay fine of Rs.1,000/- (Rupees One Thousand only) in default to undergo simple imprisonment for 10 days. Out of the fine amount already paid Rs.1,000/- (Rupees One Thousand only) is to be adjusted towards the fine imposed and the balance amount shall be refunded to the Revision Petitioner. His bail bonds were cancelled. P.Q.BARKATH ALI, JUDGE ssn