IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 CRL.A.No. 1926 of 2003(D) ----------------------------------- SC.292/2002 of III ADDL. SESSIONS COURT, THRISSUR .............................................. APPELLANT(S): ACCUSED. ------------------------------------- PAUL, S/O.KAKKAMMA, PERUMPILLIYIL HOUSE, KOTTAPPURAM, METHALA. BY ADV. SRI.K.A.JALEEL SRI.T.T.MUHAMOOD RESPONDENT(S): COMPLAINANT. ------------------------------------------------ STATE OF KERALA, REP. BY (EXCISE INSPECTOR, KODUNGALLUR, RANGE IN CRIME NO.4/2000) PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1926 OF 2003 ------------------------------ Dated this the 14th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.292/2002 of the Third Additional Sessions Judge (Adhoc),Fast Track Court I, Trichur. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and was convicted there under 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), (2) If not, whether an offence is attracted under any other section (3) In case of guilt, what is the quantum of punishment. 3. Points: All these points are answered together for the purpose of convenience. It is the case of the prosecution that on 12.10.2000 at CRL.A.NO.1926 OF 2003 2 about 11 a.m the accused was found transporting 5 bottles of 375 ml each IMFL in the box kept in his bicycle and thereby had committed the offence under 55(a) of the Abkari Act. 4. PW1 is the person who had detected the offence. He had deposed before the court that the accused was coming in a cycle with 5 bottles and as it did not have the seal of the Beverages Corporation, he was apprehended and 180 ml sample was taken and it was sealed. The accused was arrested and produced before the court. In the cross examination it is deposed by him that 1.5 litres of IMFL can be possessed and there was no label. He has also stated that there was a retail shop of the Beverages Corporation at Kodungalur. The suggestion put to him is that three bottles were taken from the house of the accused and the excise officials had added two and filed the charge sheet. What ever it may be, the possession of 5 bottles is seem to be admitted in cross examination. 5. The learned counsel for the appellant would contend before me that an offence under Section 55 (a) will not lie for the reason that there was no export, import and transport as envisaged under the said section. However it was only the CRL.A.NO.1926 OF 2003 3 Indian made foreign liquor which was taken by him and therefore, an offence will not lie under Section 55(a) of the Abkari Act. Indian made foreign liquor is permitted to be possessed and one can possess up to a quantity of 1.5 litres. Here, the evidence of PW1 does not indicate the source from where the liquor was purchased. He does not state anything about the intention to sell the liquor. Though it is stated in the seizure mahazer that the intention was for sale, there is nothing before the court to show the same. What is virtually proved is regarding the possession of 5 bottles of Indian made foreign liquor. 6. I think in such circumstances, a conviction need not be had under Section 55(a) for the reason that one is permitted to possess IMFL up to a quantity of 1.5 litres and in the absence of anything to show export etc., an offence under Section 55(a) is not made out. Therefore, I think conviction and sentence under Section 55 (a) can be set aside and for possession of the excess quantity, Section 63 will be attracted and therefore he be convicted there under. The purpose will be served by imposing a fine of Rs.5,000/= as contemplated under the said section. 7. In the result, the criminal appeal is disposed of as follows: CRL.A.NO.1926 OF 2003 4 1. The finding of guilt, conviction and sentence passed under Section 55(a) of the Abkari Act is set aside 2. The accused is found guilty of the offence under Section 63 of the Abkari Act and convicted there under and sentenced to pay a fine of Rs,5,000/= and in default to undergo S.I for a period of two months. If the amount of fine is not paid on or before 31.10.2009, the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl