IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 1289 of 2003() ------------------------------ CRA.461/2000 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.759/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------------------- KRISHNANKUTTY NAIR, S/O.RAMUNNI NAIR, ELONTHIKKAL HOUSE, PANANGAD AMSOM DESOM, QUILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENT AND COMPLAINANT:- --------------------------------------------------------------------------- 1. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERLA. 2. EXCISE INSPECTOR, BALUSSERY. BY PUBLIC PROSECUTOR SRI.JAYASURYA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.No.5373 OF 2003 IN CRL.R.P.NO.1289 OF 2003. DISMISSED. 4.08.2010. Sd/- P.S.GOPINATHAN, JUDGE. -// True copy //- P.A. TO JUDGE. Kvs/- P.S. GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.1289 of 2003. = = = = = = = = = = = = Dated this the 4th day of August, 2010. O R D E R On 20-3-1996, a Preventive Officer attached to Balussery Excise Range, who was examined as Pw1, while moving on patrol duty along with Pw2, an Excise Guard, found the revision petitioner possessing 2 ½ litres of arrack alleged to be illicit. The revision petitioner was arrested then and there. The can containing the contraband liquor was seized on the strength of Ext.P1 mahazar. Sample was taken and forwarded to the Chemical Examiner. Pw3, the Excise Inspector after investigation filed the charge sheet alleging offence under Section 58 of the Abkari Act. Ext.P2 is the occurrence report. Along with Ext.P3 forwarding note, the sample was forwarded for chemical examination. After examination, Ext.P4 report was given by the Chemical Examiner. In Ext.P4 it is reported that the sample Crl.R.P.No.1289/2003. -: 2 :- contained 20.66 per cent by volume of ethyle alcohol. 2. The revision petitioner pleaded not guilty, hence he was sent for trial by the Judicial Magistrate of the First Class, Quilandy, before whom the charge sheet for offence under Sec.58 of the Abkari Act was laid. After recording the evidence, the revision petitioner was questioned under Section 313 of the Criminal Procedure Code. He denied the incriminating evidence. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, the revision petitioner was convicted for offence under Section 58 of the Abkari Act and sentenced to simple imprisonment for three months and a fine of Rs.15,000/- with a default clause to undergo simple imprisonment for two months. Though, he preferred an appeal as Crl.Appeal No.461/2000 before the Sessions Division, Kozhikode, he was unsuccessful. Assailing the concurrent finding of guilt, conviction and sentence, this revision petition was filed. Crl.R.P.No.1289/2003. -: 3 :- 3. The learned counsel for the revision petitioner didn’t dispute the seizure of the contraband. The only contention that was argued is that to constitute offence under Section 58 of the Abkari Act, there must be evidence that the person carrying contraband had knowledge that he was carrying illicit liquor. For easy reference Sec.58 of the Abkari Act, as on the date of offence, is extracted: "58.For possession of illicit liquor:- Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh." 4. Going by the above provision, I find that to establish offence under Sec.58, the prosecution must not only prove that the accused had been carrying illicit liquor but also must prove that the accused had knowledge that the liquor that he was carrying was unlawfully imported, Crl.R.P.No.1289/2003. -: 4 :- transported or manufactured or the duty or tax was not duly paid. The legal position is not disputed by the learned Public Prosecutor. According to the Public Prosecutor, the evidence on record is sufficient enough to come to a conclusion that the revision petitioner had knowledge that the liquid that he had been carrying was illicit arrack. On the other hand, the learned counsel for the revision petitioner referring the evidence adduced by Pws.1 and 2 argued that there is no whisper in the evidence of Pws.1 and 2 that the revision petitioner had the knowledge that the liquid that he had been carrying is illicitly manufactured. Going by the evidence of Pws.1 and 2, I find merit in the submission made by the learned counsel for the revision petitioner. In the evidence of Pws.1 and 2, there is no whisper that the revision petitioner had knowledge that the liquid that he was carrying was illicitly manufactured. The courts below took it as granted that there is evidence to that effect or that no proof on that aspect is required. In Crl.R.P.No.1289/2003. -: 5 :- the above circumstance, I find that no offence under Sec.58 of the Abkari Act is established. On the other hand, the revision petitioner could not produce any document to show that he had the licence/permit to manufacture, possess or carry 2 ½ litres of illicit arrack. Therefore, it had to be presumed that the revision petitioner had been carrying 2 ½ litres of arrack without any authority. 5. Rule 6(9) of the Abkari Shops (Disposal in Auction) Rules stipulates that no liquor in excess of 750 millilitres shall be possessed by a person without licence/permit. So, there is violation of Rule 6(9) of the Abkari Shops (Disposal in Auction) Rules, which would attract an offence punishable under Sec.63 of the Abkari Act. Hence, I find that no offence under Sec.58 of the Abkari Act is established. Whereas an offence under Sec.63 of the Abkari Act is established. Sec.63, as on the date of the offence was punishable with a fine of Rs.2,000/-. In the result, the revision petition is allowed in part. Crl.R.P.No.1289/2003. -: 6 :- While setting aside the conviction and sentence under Sec.58 of the Abkari Act, the revision petitioner is convicted for offence under Sec.63 of the Abkari Act and sentenced to a fine of Rs.2,000/- (Rupees two thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months. The revision petitioner is granted one month time to deposit the fine amount. P.S.GOPINATHAN, (Judge) Kvs/-