IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 347 of 2002() ------------------------------------- SC.390/2001 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... APPELLANT(S):ACCUSED: ------------------------ CHANDRAN, S/O. VELAYUDHAN, THEKKINKAD COLONY, ELANADU VILLAGE, THALAPPILLY TALUK. BY ADV. MR.PEARLY JOSE RESPONDENT(S): /RESPONDENTS: ---------------------------- 1. STATE REPRESENTED BY EXCISE INSPECTOR, TRICHUR RANGE (C.R.16/98). 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 347 OF 2002 = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court-II, Thrissur in S.C.390/01. The learned judge found the accused guilty u/s 55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. The case of the prosecution is that on 25.8.98 at about 1.10 p.m. at Kuthiran a bus by name 'Jijo' was stopped and on search found that the accused was having 8 bottles of 750 ml. Rum by brand name Jawan XXX Rum. It is the case of the prosecution that he was not entitled to carry so much of quantity and therefore he was arrested and samples were taken from the bottle in his presence and action initiated. The trial court on an analysis of the materials found him guilty u/s 55(a) but held that the prosecution has Crl.A. 347 OF 2002 -2- failed to prove the evidence u/s 55(i). It is against that decision the accused has come up in appeal. 2. The point that arises for determination is (1) whether there is anything to interfere with the decision rendered and (2) whether the Court below was right in convicting the accused u/s 55(a) of the Abkari Act. Points 1 and 2: 3. According to the prosecution 8 bottles of Rum with the brand name Jawan XXX Rum was seized from the possession of the accused which according to the prosecution was intended for sale. As per the rules at that point of time the maximum quantity one can possess was only 4½ liters whereas what was found was six liters. The learned counsel for the appellant had argued before me that there was no authority for the person who had conducted the search and seizure and further that the sampling and sending it for chemical analysis report was not proper. It has been deposed by PW1 who was the Excise Inspector at the relevant date that he was also the excise inspector of the control room and that Crl.A. 347 OF 2002 -3- it was his additional duty. It is also deposed by him that he had all the authorization from the Assistant Commissioner to do the same. The Court below on a consideration of the evidence held that the said evidence is sufficient and it is born out by mahazar and their evidence orally. I do not want to disturb the said finding which is done after considering the materials. 4. So far as the sampling and sending it for chemical analysis is concerned the official witnesses had deposed before Court the manner in which the search and seizure has been done and how sample has been taken and Ext.P5 chemical analysis report will reveal that the seal was in tact at the time of receiving it for chemical examination. So it cannot be also found fault with. So I do not find any irregularity committed by the trial court in finding that the accused was found to be in possession of six liters of rum on the relevant date. 5. Now the next question is regarding which is the provision that can be applied to in this case. In order to convict a person under 55(a) of the Abkari Act the prosecution Crl.A. 347 OF 2002 -4- has to specifically allege and prove that the contraband articles found in the possession of the accused were in connection with export, import, transit or transport. The possession must be illegal at the inception as well. So far as this case is concerned even under law the accused is permitted to possess 4 ½ liters of Indian Made Foreign Liquor. So one cannot hold him liable for an offence u/s 55(a) and the relevant provision that may apply in such cases is as held in Sabu v. State of Kerala (2007 (4) KLT 169) and it would be S.63 of the Abkari Act. It was also a case where less than six liters of Indian made foreign liquor was found and the trial court in that matter also held that there was no sale and they were not intended for sale. The Court after going through the relevant provisions and rules held the accused in that case guilty u/s 63 of the Abkari Act. So far as the present case is concerned there is a definite finding entered into by the trial Court that it is for sale is not proved. The result of the above discussion is that the accused had in his possession six liters of Indian Made Foreign Liquor at a time when law permitted only Crl.A. 347 OF 2002 -5- 4½ liters. When it is so it is really a violation of the rules under S.13 of the Abkari Act and I do not have any hesitation to hold that the accused could be convicted only u/s 63 of the Abkari Act. Therefore the conviction u/s 55 (a) is liable to be set aside and I do so. I hold that he is guilty of the offence punishable under Section 63 of the Abkari Act. I feel the purpose will be served by imposing a fine of Rs.5,000/-. In the result the appeal is disposed of as follows. 6. The conviction u/s 55(a) of the Abkari Act is set aside and it is held that the accused is guilty of the offence punishable under Section 63 of the Abkari Act. The accused is convicted and sentenced to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of one month. The Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 347 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 347 OF 2002 = = = = = = = = = = = J U D G M E N T 26th May, 2009