IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 1081 of 2002() ------------------------------ CRA.113/1998 of SESSIONS COURT, KASARAGOD STC.1986/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): --------------------- K. DAMODARAN, S/O. CHANDU NAIR, AGED ABOUT 59 YEARS, PATHANATUKAM, MULIYAR, KASARAGOD TALUK. BY ADV. SRI.M.RAMESH CHANDER SRI.V.TEK CHAND RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, BADIADKA, KASARAGOD. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl. R.P. No.1081 of 2002 ---------------------------------------------- Dated 11th October, 2010. O R D E R This revision arises from the conviction and sentence passed against the revision petitioner under Section 58 of the Kerala Abkari Act (for short, 'the Act'). 2. According to prosecution, on 29.7.1996 at about 10 a.m., petitioner was found transporting and was in possession of 4 litres of arrack on a public road situated near a check post. PW1, the Preventive Officer and his party apprehended the accused and the articles were seized from his possession, in the presence of independent witnesses. A complaint was filed by the Excise Inspector under Section 58 of the Act. The Magistrate Court conducted a trial against petitioner for offence under Section 58 of the Act. 3. The Prosecution examined PWs.1 to 4 and marked Exts.P1 to P3 and MOs.1 and 2. On an analysis of the evidence on record, the trial court found that the accused was in possession of 4 litres of arrack and convicted the accused and sentenced him to undergo rigorous imprisonment for three years and to pay a fine Crl.R.P. NO.1081/02 2 of Rs.15,000/- and in default to undergo rigorous imprisonment for three months under Section 58 of the Act. The above conviction and sentence were challenged in appeal before the Sessions Court and the court confirmed the conviction and sentence and dismissed the appeal. This revision is filed challenging the conviction and sentence. 4. Learned counsel for the revision petitioner argued that offence under Section 58 of the Act is not attracted in this case, since the knowledge is not brought out in evidence. It is also submitted that he cannot be convicted under Section 55(a) of the Act since at the relevant time, before the amendment in 1997, offence under Section 55(a) called for more severe punishment than offence under Section 58. The petitioner can only be convicted under Section 63 of the Act, since if at all the possession of arrack with the petitioner is proved, he cannot be convicted under Section 55(a) of the Act, since the court has failed to enter a finding that the possession was in the course of transport etc. 5. Learned Public Prosecutor submitted that there is no ground to interfere with the findings of fact. It is true that the Crl.R.P. NO.1081/02 3 trial court found that the accused was found in possession of 4 litres of arrack and he had no explanation to offer for this possession and therefore, possession simplicitor will not attract offence under Section 55(a) of the Act, in the light of the judgment of this Court reported in Mohanan v. State of Kerala (2007(1) KLT 845). It is also fairly conceded that the requisites under Section 58 of the Act are also not attracted. The punishment, which can be awarded under Section 63 at the relevant period is only fine to the tune of Rs.2,000/-. 6. On hearing both sides and on going through the judgment and the records in this case, I am satisfied that all what is proved in this case is mere possession of arrack, to the extent of 4 litres, by the accused at 10 a.m. on 29.7.1996 and hence, in the light of the Division Bench decision cited above, offence under Section 55(a) of the Act will not be attracted. Section 58 also is not made out, since the requisite knowledge is not alleged or proved in this case. Nobody has a case that the accused was in possession of arrack, knowing the same to be unlawfully imported, transported, manufacture etc., as stated in Section 58 of the Act. The offences not provided for under any other Crl.R.P. NO.1081/02 4 provisions of the Act can be dealt with under Section 63. At the relevant time of commission of offence, as per Section 63 of the Abkari Act, the only punishment which can be awarded is fine of Rs.2,000/-. Hence, the petitioner is convicted under Section 63 of the Act and sentenced thereunder. In the result, the following order is passed : (i) The conviction and sentence passed against the revision petitioner under Section 58 of the Abkari Act are set aside and petitioner is acquitted of the said offence. (ii) The petitioner is convicted and sentenced under Section 63 of the Abkari Act to pay Rs.2,000/- as fine and in default, he will undergo simple imprisonment for a period of 15 days. This revision petition is partly allowed. K.HEMA, JUDGE. tgs