IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 1320 of 2003() ----------------------------------- SC.30/2002 of ADDL. SESSIONS COURT FAST TRACK-II, ALAPPUZHA .................... APPELLANT/ACCUSED -------------------------------- BALAKRISHNAN, S/O. KESAVAN, MALAYIL VEEDU, MUTTAR VILLAGE. BY ADV. MR.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------- 1. THE EXCISE INSPECTOR, KUTTANAD RANGE. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1320 OF 2003 = = = = = = = = = = = = = = = Dated this the 16th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.30/02 of the Addl. Sessions Judge, Fast Track Court-II, Alappuzha. The accused was charge sheeted for offence u/Ss 8(i) and (ii) and 55(a) of the Abkari Act and was convicted for the offence u/s 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment to undergo simple imprisonment for a further period of three months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1)Whether there is sufficient materials to hold that the accused has committed the offence u/s 55(a) of the Act? (2) If not, whether any other provision is attracted? (3) Is the quantum of punishment excessive? Crl. Appeal NO. 1320 OF 2003 -:2:- Points 1 to 3: 3. It is the case of the prosecution that on 19.8.99 at about 8 a.m. the accused was found in possession of 1½ liters of illicit arrack in a bottle near Deepa junction and he was intercepted, apprehended, examined and by taste and smell it was found to be illicit arrack and in his presence sampling was done and sealed and the accused was arrested and produced before Court. 4. In the trial court PWs.1 to 5 were examined and Exts.P1 to P5 and MOs.1 and 2 were marked. MO1 is the liquor and MO2 is the newspaper used for rapping MO1. PW1 and 2 are independent witnesses who as usual turned hostile for the reasons best known to them. PW3 is the Preventive Officer who had accompanied the Excise Inspector. He would depose that the accused was found coming 10 feet east of Deepa junction with a bottle in his right hand, the vehicle was stopped and in the presence of the witnesses the bottle was examined and it was found to be arrack. It was so found by taste and smell. 150 ml of sample was taken and they were sealed and signed. The remainder was also sealed and it has Crl. Appeal NO. 1320 OF 2003 -:3:- been identified as MO1. In the cross-examination nothing serious has been brought out to discard his evidence. By a general question whether there are colourless foreign liquor or fenni is a coloured liquid, suggestion was what is recovered is not arrack. He has also denied the suggestion that there was any dispute between him and the accused on the previous day. PW4 is the Excise Inspector and he has stated that the accused and the material objects were brought by PW3 and he had prepared the occurrence report and also prepared the material lists and it was send for chemical examination. According to him the samples were sent on 19.8.99 itself. PW5 is an Excise Inspector. He would depose that he had conducted the investigation and laid the charge. PW6 was the person who had led the team and he had spoken in line with what PW1 has spoken. He also submits that it was found to be illicit arrack. A suggestion is also put to him that the accused created some problems and that is why a false case is foisted against him. Ext.P3 is the thondi list which appears to be received by the Court on 23.8.99. Ext.P2 is the forwarding note and the chemical analysis report in this case would show Crl. Appeal NO. 1320 OF 2003 -:4:- that the liquor sent for sample contained 28.19% by volume of ethyl alcohol. It is also seen therein that the seal on the bottle was in tact and found tallied with the sample seal provided. So the factum of seeing the accused, apprehending him and sealing the bottle etc. are proved by the evidence of the witnesses. It is also seen that the sample which is taken and produced before Court on 23.8.99 on the basis of a forwarding note has been sent for chemical analysis which revealed that it is a colourless liquid and on test conducted revealed it contained 28.19% by volume of ethyl alcohol. 5. Now the learned counsel for the appellant would very strongly contend before me that the liquid taken is not proved to be illicit arrack and therefore a conviction cannot be had u/s 55(a) of the Abkari Act. Except the mere suggestion put to PW3 whether fenni is a liquor which is colourless or whether there is any foreign liquor without any colour, there is no pin pointed question put or any attempt anywhere made regarding the possession of liquid with the accused. U/s 64 of the Abkari Act when possession is found there is a presumption that the burden is on the accused to prove it Crl. Appeal NO. 1320 OF 2003 -:5:- otherwise. It has to be also stated that Excise officials who are dealing with liquor, by experience would be able to state by taste and smell what is the liquid. When it is supported by scientific analysis result that the liquid contain ethyl alcohol, the court should certainly accept their evidence to prove that the case spoken to by them is true. It has also to be stated that the definition of arrack is an exclusive definition showing that such and such liquor other than those mentioned will come under the definition of arrack. There is nothing available before the Court to show that it is one of the liquid which is excluded. Further it is known that spirit is a colourless liquid and the evidence will establish that what is spoken to by PWs.1 and 5 is acceptable. Therefore I find that the prosecution has succeeded in proving the factum that the accused was in possession of liquor. 6. Now turning to the provisions. In the light of the decision reported in 2007 (1) KLT 845 Mohanan v. State of Kerala, in order to constitute an offence u/s 55(a) of the Abkari Act there must be illegal export, import or transport or possession of liquor. The said possession must be while Crl. Appeal NO. 1320 OF 2003 -:6:- illegally transporting. It is absent and so Section S.55(a) would not be attracted. The prosecution has proved the possession of liquor by the accused consciously. It will attract S.58 of the Abkari Act. When a charge is filed u/s 55(a) of the Act whether a person can be convicted u/s 58 came up for consideration before a learned Judge of this Court in the decision reported in 2007 (1) KLN SN 42 case No.58(Shaji v. State of Kerala). The learned judge of this court held that unless it has caused prejudice and as the sentence under both the Sections are similar the Court shall not interfere with such a conviction. So I am satisfied that as the conscious possession of liquor by the accused is found in this case he can be found guilty u/s 58 of the Abkari Act and convicted thereunder. Even if the argument raised by the learned counsel regarding illicit arrack is accepted to avoid S.8(1) and (2) of the Act, he cannot escape from S.58 of the Act. Therefore I find the accused is guilty u/s 58 of the Act. 7. Now turning to the question of sentence. The quantity of liquor possessed by the accused is 1.5 liters. So taking into consideration the quantum and the other attending Crl. Appeal NO. 1320 OF 2003 -:7:- circumstances I think justice can be met by sentencing him to undergo imprisonment for three months and to pay a fine of Rs.1,00,000/- u/s 58 of the Abkari Act and in default to undergo simple imprisonment for a period of one month more. 8. In the result the Crl.Appeal is disposed as follows. (1) The conviction and sentence passed u/s 55(a) is set aside and the accused is convicted u/s 58 of the Abkari Act. (2) The accused is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- in default of which he is directed to undergo a further simple imprisonment for one month. (3) The accused is also entitled to set off as contemplated under law and the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-