IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Crl.Rev.Pet.No. 337 of 2002() -------------------------------------------- ST.1292/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR CRA.94/2000 of ADDL. SESSIONS COURT (ADHOC) FAST TRACK- I, THRISSUR ........................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------------- SUNNY @ CHACKO,S/O.MANJALI LONAKUTTY, PANAMCHERI VILLAGE,VANIYAMPARA DESOM,THRISSUR. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SMT.P.MAYA RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM REPRESENTING THE EXCISE INSPECTOR,THRISSUR RANGE. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- CRRP.No.337 OF 2002 ----------------------------------- Dated this the 12th day of October, 2010 O R D E R This appeal arise from conviction and sentence passed against appellant to undergo simple imprisonment for three months and fine of Rs.5,000/- and in default to undergo simple imprisonment for three months. 2. According to prosecution, on 28.6.1996 at about 8.45 pm, revision petitioner was found in possession of coloured illicit arrack, and transporting the same in three bottles, each having 750 ml capacity, in contravention of the provisions of Abkari Act and thereby committed offence u/s 58 of Abkari Act. 3. The Magistrate Court took cognizance of the offence, on a complaint filed by Abkari Officer. The prosecution examined PW1 to 4 and Ext.P1 to P3 and MO1 to MO3. On analysis of the evidence in detail, trial court found that appellant was in possession of arrack as alleged by prosecution, and convicted revision petitioner u/s.58 of the Abkari Act. In appeal, learned Additional Sessions Judge also confirmed conviction and sentence. Hence this revision petition. Crl.R.P. No.337/02 2 4. Learned counsel for the revision petitioner submitted that offence u/s.58 of Abkari Act is not made out in this case, since requisite knowledge as stated in 58 are not made out. It is also submitted that Sec.8(1) of the Act lays down that no person shall possess arrack etc. and therefore petitioner can be sentenced only u/s. 63 of the Abkari Act. During the relevant period, maximum punishment which can be imposed only Rs.2,000/- as fine, it is submitted. Learned counsel for petitioner submitted that petitioner has already deposited Rs.5,000/- before the trial court at the time of admission of the revision petition. Therefore, balance amount of fine may kindly be ordered to be refunded. 5. Learned public prosecutor submitted that it is proved that petitioner was in possession of arrack and hence the petitioner has violated Sec.8 of the Abkari Act. Violation of Sec.8 is an offence u/s 55(a) of Abkari Act and therefore, offence committed by petitioner will be u/s 55(a) of Abkari Act, it is argued. Hence no interference is called for in the sentence, it is submitted. 6. On hearing both sides and on going through the records and the impugned judgment, I am satisfied that there is no reason to interfere with the concurrent finding of fact that revision petitioner was found in possession of 2.25 liters of arrack, Crl.R.P. No.337/02 3 as alleged by prosecution. A reading of Sec.58 of Abkari Act reveals that mere possession of arrack or liquor will not constitute the said offence. Apart from being in possession, specific knowledge referred to in section 58 of the Act have to be established by prosecution. But, no evidence is adduced in this case to show that petitioner was having such knowledge as referred to in section 58. Even in the substance of accusations made requisite knowledge is missing. Therefore, conviction u/s.58 of Abkari Act is unsustainable. 7. The next question is what is the offence made out. Sec.8 lays down no person shall possess arrack. Sec.55 lays down that if a person is in possession of liquor, in contravention of any of the provisions of the Act, he will be liable u/s.55(a) of Abkari Act. Going by the decision of the Division Bench, if a person is found in possession, in the course of transport etc., such person can be convicted u/s.55(a) of Abkari Act. 8. But both the courts below entered a finding that accused was in possession of arrack. It is not held that such possession was in the course of transport etc. Therefore, in the light of division bench decision Mohanan Vs. State of Kerala 2007 (1) KLT 845 a person cannot be convicted for sec. 55(a) of Abkari Act. That apart, punishment prescribed for the offence u/s 58 and Crl.R.P. No.337/02 4 55(a) are strikingly different. While punishment under Section 55(a) is imprisonment, which may extent up to two years at the relevant time, punishment u/s.58 of Abkari Act is only maximum of one year. The sentence under section 55(a) is higher than that under section 58. Prosecution has not challenged the conviction or sentence. It has no case that the court ought to have convicted under section 55(a). Therefore, it may not be proper for this court to convict the accused for offence u/s.55(a) instead of Sec.58 of Abkari Act. Hence, the only alternative left to the court is to impose punishment prescribed in Sec.63 of Abkari Act. Hence the following order is passed: 1. The conviction and sentence passed against revision petitioner u/s.58 of Abkari Act are set aside and the petitioner is acquitted of offence u/s.58 of Abkari Act. 2. The petitioner is sentenced u/s.63 of Abkari Act for violation of section 8 of the Act (which was in force as on the date of offence) to pay fine of Rs.2,000/- and in default, if any, to undergo simple imprisonment for one month. 3. The amount which is already deposited towards fine before the trial court, will be adjusted towards fine imposed as per this judgment and the balance will be refunded to the petitioner. Petition is allowed in part. K. HEMA, JUDGE. Sou.