IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 1904 of 2003(D) ------------------------------------- SC.NO.423/2002 OF ADDL. SESSIONS COURT (ADHOC), THRISSUR. .................... APPELLANT/ ACCUSED: ----------------------------------- APPU @ RAJAN, S/O. KESAVAN, MANAPPURATH HOUSE, THEKKINAD COLONY, ELAMTHATT VILLAGE, ELAMTHATT DESOM, THALAPPILLY TALUK. BY ADVS. MR.P.VIJAYA BHANU, SMT.P.MAYA. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1904 OF 2003 ------------------------------ Dated this the 11th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Third Additional Sessions Judge, (Adhoc), Fast Track Court-I, Trichur in S.C.No.423/2002. The accused was charge sheeted for an offence under Section 55 (a) of the Abkari Act and he was found guilty under the said section and convicted and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default to undergo R.I for three months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether materials are sufficient to hold the accused guilty under Section 55(a) of the Abkari Act (2) If Section 55(a) of the Abkari Act is not attracted, whether any other provision will apply and in such a situation, what will be the proper order as to sentence. 3. Points 1 and 2: CRL.A.NO.1904 OF 2003 2 These points are considered together for the sake of convenience. It is the case of the prosecution that on /30.6.1999 at 12 noon in front of the house of one Mohanan the accused was found transporting 6 bottles of 750 ml each Speed 4 X Rum and thereby had committed the offence under Section 55 (a). The Assistant Excise Inspector who had detected the crime is no more and the person who had accompanied him is PW4. He had deposed before the court regarding sighting of the accused, apprehension, seizure, sampling arrest etc. 4. Ex.P1 is the seizure mahazer which is prepared by PW4 himself as per the direction of the detecting officer. The labels affixed on the bottles are marked as Ext.P5 series and the material objects are marked as Mos 1 and 2. The independent witnesses, they have admitted their signature, but had not supported the case of the prosecution. The accused was produced before the court on 30.6.1999. Materials have also been produced and the Chemical Examiner's report revealed that the liquid contained ethyl alcohol by 42.02% by volume. It has also come out in evidence that the bottles were having the seal of the Beverages Corporation. CRL.A.NO.1904 OF 2003 3 5. Now the question is whether action under Section 55 (a) will lie. This fact was considered by a Division Bench of this Court in the decision reported in Mohanan v. State of Kerala (2007 (1) KLT 845). The court held that “Section 55(a) deals with only illegal import, export or transport, transit etc on such import or export. The court further held that Section 55 (a) applicable only when persons illegally imports or transports liquor or in possession of liquor while illegally importing. So in order to attract the offence under Section 55 (a) in this case, it has to be established that possession of the liquor was while illegally importing. 6. As far as this case is concerned, the accused was found to be in possession of 6 bottles of Indian made foreign liquor which had the seal of the Beverages Corporation. The persons are entitled to possess the liquor supplied by the Beverages Corporation but the only restriction is that a prescribed quantity is fixed to be possessed and any quantity possessed in excess of the same would amount to breach of the conditions regarding possession of the liquor under the Foreign Liquor Rules. CRL.A.NO.1904 OF 2003 4 7. Here admittedly, the possession was about 4.5 litres and at that point of time, persons were entitled to possess 1.5 litres or in other wards, the accused was found to be in excessive possession of 3 litres and therefore has violated the Foreign Liquor Rules. When it is so, the provision that is attracted will be Section 63 of the Abkari Act. Under Section 63 of the Abkari Act, the punishment prescribed is imprisonment up to a period of two years or with a fine of Rs.5,000/= or with both. 8. Since the accused was found to be in possession of Indian made foreign liquor with the seal of the Beverages Corporation , I am inclined to only impose fine on him and save him from imprisonment. The maximum penalty prescribed is Rs.5,000/= and it is imposed as fine in this case. As discussed by me earlier, an offence under Section 55 (a) will not lie against the accused and therefore, the conviction and sentence passed under that section has to be set aside. I do so. 9. In the result, the criminal appeal is disposed of as follows: CRL.A.NO.1904 OF 2003 5 1. The finding of guilt, conviction and sentence under Section 55(a) of the Abkari Act are set aside and the accused is found guilty under Section 63 of the Abkari Act and is convicted there under. 2. He is sentenced to pay a fine of Rs.5,000/= and in default, to undergo S.I for a period of two months. 3. If the fine amount is not paid on or before 30.9.2009, the court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl CRL.A.NO.1904 OF 2003 6 M.N. KRISHNAN, JUDGE cl