IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 1416 of 2001() ------------------------------ CRA.65/1999 of SESSIONS COURT, KOZHIKOE CC.200/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THAMARASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------- MOHANDAS, S/O.UPPERAN, MANASSERY AMSOM, THALEKKODE DESOM, CALICUT DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT: -------------------------------------------------------------------- CIRCLE INSPECTOR OF EXCISE, CALICUT, REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.RAMANAND K.B. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P..No. 1416 of 2001 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 31st day of January, 2011 JUDGMENT Revision petitioner is the accused in C.C. No. 200 of 1997 on the file of the Judicial Magistrate of the First Class- II, Thamarassery and the appellant in Crl.A.No. 65 of 1999 on the file of the Court of Sessions, Kozhikode Division. He was convicted under section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.15,000/-, in default to undergo simile imprisonment for two months by judgment dated January 6, 1999. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence to rigorous imprisonment for one month and to pay a fine of Rs.5,000/-, in default to under go simple imprisonment for two months. The accused has challenged his conviction and sentence in this revision. 2. The case of the prosecution, as unfolded in evidence before the trial court, in brief, is this:- PWs.1 and 3 CRRP 1416/2001 2 then Preventive Officers attached to the Excise Circle Office, Kozhikode. On November 23, 1995 they were on patrol duty along the road leading from Kuttiery to Nalukuzhi in Manassery amsom, Thalekkode desom in Kozhikode Taluk. They found the accused carrying MO1 can in his hand. On examination it was found that the can contained three litres of illicit arrack. The accused was arrested on the spot and the contraband articles were seized. Sample was taken and sealed and labelled and Ext.P1 mahazar was prepared in the presence of PW2, an independent witness. The accused was brought to the office. PW4, the Excise Circle Inspector recovered the records and material objects and registered the case against the accused. On his request the sample was sent for chemical analysis. Ext.P4 the report showed that the sample contained 36.41 % by volume of ethyl alcohol. PW4 conducted the investigation and laid the charge before the trial court. 3. The accused on appearance before the trial court CRRP 1416/2001 3 pleaded not guilty to the charge under section 58 of the Abkari Act. PWs.1 to 4 were examined and Exts.P1 and P5 and MOI were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire incident. PW4 was recalled at the request of accused and further cross- examined on the side of the accused. 4. The trial court on an appreciation of the evidence found the accused guilty of the offence punishable under section 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused the lower appellate court confirmed his conviction but modified the sentence as stated above. 5. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 58 of the Abkari Act by the trial court, which was confirmed in appeal by the lower appellate court, can be sustained ? If not, what is the offence CRRP 1416/2001 4 committed by the accused ? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh ? 7. PWs.1 and 3 Preventive Officers have testified in terms of the prosecution case before the trial court. No serious discrepancies were brought out during their cross examination to discredit their evidence. Further their evidence is supported by Exts.P1 and P4. The learned counsel for the revision petitioner argued that as independent witness PW2 turned hostile and did not support the prosecution case, the evidence of PWs. 1 and 3 being the official witnesses cannot be relied on. There is no substance in the above contention. It is settled law that the evidence of official witnesses, if found to be trustworthy and reliable, can be accepted and can form the basis of conviction. The trial court as well as the lower appellate court found their evidence reliable. I have gone through their evidence. I find no reason to come to a different conclusion. The evidence of PWs.1 and 3 prove beyond CRRP 1416/2001 5 doubt the search and recovery of illicit liquor from the accused. Admittedly, they have no prior acquaintance or enmity towards the accused to foist a false against him. Therefore, in my view, the trial court as well as the lower appellate court are perfectly justified in accepting their evidence and coming to the conclusion that the accused was found in possession of illicit arrack as alleged by the prosecution. 8. The next question for consideration is whether the accused can be found guilty of the offence punishable under section 58 of the Abkari Act. The incident happened on November 23, 1995. At that time arrack was not prohibited. The permissible quantity of arrack that one can possess without permit was 750 ml. as per S.R.O. No.89/69, G.O.(P) No.82/69/RD dated February 19, 1969 issued under sections 10 and 13 of the Abkari Act. Section 58 of the Abkari Act provides that 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, CRRP 1416/2001 6 transported or manufactured, or knowing the duty, tax or rental payable under the Act not to have been paid therefor, shall be punishable as provided therein. It is clear from the above that mere possession of liquor is not sufficient to attract an offence punishable under section 58 of the Abkari Act. He must have been in possession without lawful authority, knowing the same to be unlawfully imported, transported or manufactured, or knowing that the duty, tax or rental payable not to have been paid thereof. In the present case, the prosecution has no case that the accused was in possession of the liquor knowing that it was unlawfully manufactured or he was in possession of the liquor in the course of import, export or transit. That being so, the accused cannot be found guilty of the offence punishable under section 58 of the Abkari Act. The above position has been made clear by a Division Bench of this court in Surendran V. Excise Inspector (2004(1) KLT 404). The principle laid down in the above decision was also followed by a Single Bench of this Court in Crl.R.P. CRRP 1416/2001 7 No.1674/2002 by order dated 18-6-2010, a copy of which is made available to me by the learned counsel for the revision petitioner. In the light of the principles laid down in the above mentioned decision in this case, the accused cannot be found guilty of the offence punishable under section 58 of the Abkari Act. 9. The next question for consideration is what is the offence committed by the accused. He was found in possession of arrack in excess of the permissible quantity. Therefore, he can be found guilty of possession of illicit arrack in contravention of sections 10 and 13 of the Abkari Act and the above mentioned notification issued by the Government, which is punishable under section 63 of the Abkari Act. Therefore, I set aside the conviction of the revision petitioner under section 58 of the Abkari Act and convict him under sections 10 and 13 of the Abkari Act read with section 63 of the Abkari Act. 10. Next it has to be considered what is the proper punishment that can be imposed. As I have set aside his CRRP 1416/2001 8 conviction under section 58 of the Abkari Act and convicted him under section 63 of the Abkari Act, the sentence imposed by the trial court, which was modified in appeal by the lower appellate court, is set aside. He is sentenced to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for one month under section 63 of the Abkari Act. One month's time is granted for payment of the fine. His bail bonds are cancelled. The appeal is allowed in part. P.Q.BARKATHALI, JUDGE mn CRRP 1416/2001 9 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A.No. 1416 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 31-1-2011