IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 CRL.A.No. 1247 of 2003() ------------------------------------- SC.170/1999 of ADDL. SESSIONS COURT (FAST TRACK COURT-I) MANJERI' .................... APPELLANT(S): ACCUSED --------------------- SURESH S/O. MADHAVAN, KALLINGAL HOUSE, OORAGAM KEZHMURI, MALAPPURAM DISTRICT. BY ADV. MR.BABU S. NAIR RESPONDENT(S): STATE --------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VENGARA POLICE STATION- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 1 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1247 OF 2003 ------------------------------ Dated this the 12th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Fast Track Court-I), Manjeri in S.C.No.170/1999. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and was found guilty under Section 63 and sentenced to undergo R.I for two years and to pay a fine of Rs.5,000/- and in default to undergo S.I for six 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 convict the accused under 63 of the Abkari Act (2) In case of guilt, whether the sentence is excessive? 3. Points 1 and 2: Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 17.7.1997 at about 6.15 p.m the accused was found in possession of 6 CRL.A.NO.1247 OF 2003 2 bottles of Indian made foreign liquor of 375 ml capacity for sale and to earn profit. He was charge sheeted and stood for trial. 4. PW1 is the investigating officer. He had deposed before the court that while he was on patrol duty, the party found the accused with a plastic cover. On seeing them, though he attempted to escape, it failed. He was examined and it was found that the bag contained 6 bottles of liquor having 375 ml capacity. All the procedural formalities had been complied with, sample was taken etc. It is clear from Para-9 of the judgment that all the bottles were found sealed with the Beverages Corporation’s sticker. The court observed that it cannot be believed that Beverages Corporation selling other liquid under the pretext of Indian made foreign liquor. What is found is that the accused was found in possession of 2.250 litres of Indian made foreign liquor. The court also found that since the detection was on 17.7.1996 he was only entitled to possess a quantum of 1.5 litres. The quantum was changed only in the year 1998 i.e, 5.3.1998 to 4.5 litres. 5. So, it has to be held from the facts and circumstances of this case that the accused who was entitled to possess only 1.5 litres of Indian made foreign liquor was found to CRL.A.NO.1247 OF 2003 3 be in possession of 2.250 litres without any valid permit or explanation and therefore, he has committed the offence under Section 63 of the Abkari Act. Therefore, I do not interfere with the finding of guilt under Section 63. 6. So far as the sentence is concerned, I feel, the sentence of imprisonment is not necessary at all in this case for the reason that the excess quantity found to be in possession is hardly three fourth of a litre. The prosecution had not succeeded in proving that it is for sale. So, the maximum sentence of fine of Rs.5,000/= will be sufficient for the guilt of the accused. Therefore, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 63 of the Abkari Act is confirmed. 2. The sentence of imprisonment of two years is set aside. 3. The accused is sentenced to pay a fine of Rs. 5,000/= and in default to undergo S.I for three months. If the accused does not pay the fine amount on or before 30.9.2009, the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl