IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.A.No. 452 of 2003() ----------------------- SC.143/2001 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA .................... APPELLANT(S): ACCUSED: ------------------------------------------ JOY, AGED 40 YEARS, S/O. JOSEPH, THANNIKKAL HOUSE, ASRAMAM BHAGAM, MOOLAMATTOM KARA, ARAKULAM VILLAGE,IDUKKI DISTRICT. BY ADVS.MR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KANJAR POLICE STATION, KANJAR. 2. THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.P.NO.2670/2003 IN CRA.NO.452/2003 DISMISSED 16/06/2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 452 OF 2003 = = = = = = = = = = = = = = = Dated this the 16th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.143/01 of the Addl. District and Sessions Judge, Adhoc-I, Thodupuzha. The charges were levelled u/Ss. 55(a) and (i) of the Abkari Act and the Court below convicted the accused u/s 55(a) of the Act. He was directed to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of three months. The finding of the Court below is u/s 55(a) of the Act. But the discussion in the operative portion seems to be one u/s 55(i) of the Act. I make it very clear that I am not entering into a finding at this stage because it may affect the accused. If only a charge u/s 55 (a) is to be found necessarily the accused cannot be proceeded against in this case for the reason stated in 2007 (1) KLT 845 Mohanan v. State of Kerala. It is held therein that 55(a) is applicable only when persons Crl. Appeal NO. 452 OF 2003 -:2:- illegally imports or transport liquor or in possession of liquor while illegally importing. Most probably the possessory aspect, if proved, will be there. But it is in the process of importing also may have to be proved. So I am afraid that a charge u/s 55(a) may not lie. I had gone through the judgment of the Court below and the approach of the Court below appears to be, to find the accused guilty u/s 55(i) because it has discussed about the utensils used for sale, the circumstances etc. It is for that court to decide whether the offence u/s 55 (a) is attracted and at the same time the learned counsel for the appellant submits before me that there may be a direction to the Court below to consider that if at all he is guilty of any offence whether it will come u/s 63 of the Act or not. Since the matter has to go back I feel the said request also can be considered. Therefore the conviction and sentence passed u/s 55(a) of the Abkari Act is set aside and the matter is remitted back to the Court below to find out whether an offence u/s 55(i) is proved in this case or whether an offence u/s 63 alone will lie. For the said purpose the Crl. Appeal NO. 452 OF 2003 -:3:- prosecution as well as the accused are permitted to adduce evidence in support of their respective contentions. Parties are directed to appear before the Court below on 1.8.2009. The Crl.Appeal is disposed of as above. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 452 OF 2003 -:4:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 452 OF 2003 = = = = = = = = = = = J U D G M E N T 16th June, 2009