IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 CRL.A.No. 1023 of 2003() ----------------------------------- SC.361/2002 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED ------------------------------------- KURIAN, S/O. PANDIYAMKATTIL ELYYAS, PANGARAPPILLY VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.ROBSON PAUL RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE, REP.BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.No. 1023 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd day of December, 2010 JUDGMENT Challenge in this appeal by the accused is to the judgment of the III Addl. Sessions Judge (ADHOC) (Fast Track Court No.I), Thrissur in S.C. No.361 of 2002 dated May 26, 2003 convicting him under section 55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh, in default to undergo rigorous imprisonment for a further period of three months. 2. The case of the prosecution, as testified by PW1, the then Preventive Officer of the Pazhayannur Excise Range, and PW2, the then Excise Guard of the same Excise Range, before the lower court is that on November 12, 1998 at about 6.15 p.m. on the panchayat road in front of the house of one Thankachan at Pangarappall desom the accused was found to be in possession of 5 litres of Indian Made Foreign Liquor (6 bottles of 750 ml. and 1 bottle of 500 ml.) and that thereby Crl.A.1023/2003 2 committed the offence punishable under section 55(a) of the Abkari Act. PW1 arrested the accused from the spot and prepared seizure mahazar Ext.P1. Ext.P2 is the arrest memo and Ext.P4 is the body search memo. PW1 brought the accused to the office and registered the case against him. 3. PW3 conducted the investigation. After completing the investigation, charge was laid before the committal court i.e., First Class Magistrate Court, Wadkkanchery. 4. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence under section 55(a) of the Abkari Act is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Thrissur from where it was made over to the lower court for trial and disposal. 5. The accused on appearance before the trial court pleaded not guilty to the charge under section 55(a) of the Abkari Act. PWs.1 to 3 were examined and Exts.P1 to P13 and MOs.1 and 2 were marked on the side of the prosecution. Crl.A.1023/2003 3 When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire incident. 6. The trial court on an appreciation of the evidence found the accused guilty of the offence punishable under section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. Now the accused has come up in appeal challenging his conviction and sentence. 7. Heard learned counsel for the appellant and learned Public Prosecutor. 8. The following points arise for consideration : 1) Whether the conviction of the appellant under section 55(a) of the Abkari Act by the trial court can be sustained ? If not, what is the offence committed by the accused ? 2) What is the proper sentence that can be imposed? 9. PW1 Detecting Officer and PW2 Excise Guard testified in terms of the prosecution case before the lower court. I have gone through their evidence. No serious discrepancies were brought out during their cross examination to discredit their evidence. They have no enmity Crl.A.1023/2003 4 towards the accused to foist a false against him. Therefore, in my view, the lower court is perfectly justified in accepting their evidence and coming to the conclusion that the prosecution has succeeded in proving the seizure of MOs.1 and 2 the contraband articles from the accused. 10. The next question for consideration is whether the conviction of the accused under section 55(a) of the Abkari Act can be sustained? A Division Bench of this Court in B. Abdulla V. Station House Officer and another (2007(4) KHC 90) has held that mere possession of Indian Made Foreign Liquor in excess of the permissible quantity would not attract section 55(a) of the Abkari Act and in such a case the accused can be found guilty only under section 63 of the Abkari Act for having violated sections 10 and 13 of the Act ie., for having been in possession of liquor in excess of the permissible quantity. The prosecution has no case that the accused has kept the Foreign Liquor for sale. During that period the permissible quantity of Indian Made Foreign Liquor that can be possessed by a person is 4.5 litres as seen Crl.A.1023/2003 5 from S.R.O. No.89/69 issued under G.O.(P) No.82/69/RD dated 19-2-1969, which was reduced to 1.5 litres as per S.R.O. No.127/99 under G.O.(P) No.22/99/TD dated 5-2-1999. Therefore, in the present case also accused can only be found guilty of keeping Indian Made Foreign Liquor in excess of the permissible quantity, which is punishable under section 63 of the Abkari Act. That being so, his conviction under section 55 (a) of the Abkari Act cannot be sustained and he can be convicted only under section 63 of the Abkari Act for violation of sections 10 and 13 of the Abkari Act. Therefore,the conviction of the appellant under section 55(a) is set aside and he is convicted under section 63 of the Abkari Act. 11. The next question for consideration is proper punishment to be imposed. The maximum sentence that can be imposed under section 63 of the Abkari Act is a fine upto Rs.5,000/- or imprisonment which may extent to two years. The incident happened on November 12, 1998 and quantity involved is 5 litres of Indian Made Foreign Liquor. No previous conviction is pleaded or proved against the Crl.A.1023/2003 6 appellant/accused. Therefore, I feel that imprisonment till rising of court and fine of Rs.5,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice. 12. In the result, the appeal is allowed in part. Conviction of the appellant under section 55(a) of the Abkari Act is set aside and he is convicted under section section 63 of the Abkari Act. He is sentenced to undergo imprisonment till rising of court and sentenced to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one month. Two months' time is granted for payment of fine. His bail bonds are cancelled. He shall surrender before the trial court on or before 31-1-2011 to suffer the sentence. P.Q.BARKATHALI, JUDGE mn Crl.A.1023/2003 7 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A.No. 1023 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 3-12-2010