IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 287 of 2001 -------------------------------------------- CRA.49/1998 of SESSIONS COURT, KOZHIKOE CC.645/1995 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER/APPELLANT/ACCUSED: PUTHIYOTTIL BALAN, S/O KELU, ONCHIYAM AMSOM DESOM, VADAKARA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/CPMPLAINANT/STATE: 1. THE EXCISE INSPECTOR, VADAKARA (CR.NO.27/95). 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI.T.J.AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1209/2001 IN CR.R.P.NO.287/2001 DISMISSED 25.5.2009 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ K.P. Balachandran, J. -------------------------- Crl.R.P.No.287 of 2001 -------------------------- ORDER Petitioner is the accused in Crime No.27/95 registered by the Excise Circle Inspector, Vadakara. The Excise Circle Inspector detected the offence of vending of foreign liquor by the petitioner in his shop on 26.3.1995 and submitted occurrence report with the mahazar before the Judicial First Class Magistrate, Vadakara and after due investigation submitted also the final report in the case. Though the occurrence report as also the final report were for unauthorised sale of foreign liquor in the shop of the petitioner, the provision of law invoked is not Section 55(i), but, Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. 2. Section 55(a) of the Abkari Act deals with import, export, transport, transit and possession of liquor or any intoxicating drug and Rule 9 of CRRP 287/01 2 the Foreign Liquor Rules deals with import of foreign liquor. The charge is not for unauthorised sale of foreign liquor in the shop of the petitioner. As regards illegal import, though there is no charge, PW2 has deposed, when examined in court, that on questing the petitioner he has disclosed that the liquor is brought from Mahe. If at all it is brought from Mahe for sale, the offence under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules apply. On the other hand, if it is unauthorised sale, it is Section 55(i) of the Abkari Act that applies. 3. It is contended by learned counsel for the petitioner that offence was not a warrant trial case, as the Act stood at the time of occurrence in 1995 and therefore, only the particulars of the offence were read over. But, all the same, conviction of the petitioner by the learned Magistrate is under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and CRRP 287/01 3 for such conviction, there is absolutely no evidence. Learned counsel is justified in the submissions that he makes. At the same time, the particulars of the offence read over and explained to the petitioner were one which attracted Section 55(i) of the Abkari Act and evidence was also adduced on that aspect and there appears to be sufficient evidence for a conviction under Section 55(i) of the Abkari Act. I am of the view that the conviction and sentence passed against the petitioner for offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules deserves to be set aside and the case remitted back to the learned Magistrate for disposal afresh giving a further opportunity also to the petitioner to answer the charge under Section 55(i) of the Abkari Act. Before affording such an opportunity, the learned Magistrate shall further question the accused specifically pointing out that the charge against him is for illegal and CRRP 287/01 4 unauthorised sale of liquor in his shop, which attracts Section 55(i) and not Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, if at all that provision is also not being invoked. In the result, I set aside the conviction and sentence passed concurrently by the courts below against the petitioner and remit the case back to the learned Magistrate to dispose of the matter afresh questioning the accused for offence under Section 55(i) of the Abkari Act as well and affording an opportunity for him to further cross- examine the witnesses if he so desires, as observed above. Transmit the case records to the trial court forthwith. Petitioner shall surrender before the learned Magistrate positively on or before 12.8.2009. 25th May, 2009 (K.P.Balachandran, Judge) tkv CRRP 287/01 5 K.P.Balachandran, J. -------------------------- Crl.R.P.No.287 of 2001 -------------------------- ORDER 25th May, 2009