IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 365 of 2003() -------------------------------------- SC.199/1999 of ADDL. SESSIONS COURT (ADHOC), THALASSERY .................... APPELLANT(S): ACCUSED --------------------- CHALIL PARAMBATH BHASKARAN, S/O. GOVINDAN, KADIRUR P.O, THALASSERY, KANNUR DISTRICT. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA - EXCISE INSPECTOR, THALASSERY REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2035/2003 IN CRA. NO.365/2003 DISMISSED 03.08.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.365 OF 2003 ------------------------------ Dated this the 3rd day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-I), Thalassery in S.C.No.199/1999. The accused was charge sheeted for the offence under Section 55 (a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and he was convicted and sentenced to undergo S.I for six months and also to pay a fine of Rs. One lakh and in default to undergo S.I for a further period of six months. 2. It is the case of the prosecution that on 5.2.1998 at about 5 p.m the Excise party saw the accused carrying a plastic bag containing two bottles of 375 ml each, three bottles of 375 ml each, and six bottles of 180 ml each containing Whisky and Brandy respectively at Moolakkadavu – Ponniyam road and therefore has committed the offence under Section 55(a) of the Abkari Act. 3. The learned counsel for the accused contends before me that when there is only violation of the foreign liquor 2 CRL.A.NO.365/03 rules, at the most, the offence that can be attracted will be Section 63 of the Abkari Act. On the other hand, the learned Public Prosecutor would contend that a reading of the court charge would reveal that it is Section 55(i) of the Abkari Act that will be attracted. 4. I had gone through the seizure mahazer also which would indicate that the liquor was only permitted to be sold in the State of Pondicherri. If it is a case, necessarily a proper charge has to be framed and the accused has to be given an opportunity to meet the charge. Similarly, the evidence that has to be tendered should be in the light of the charge which is properly framed. Now, it is argued that in order to attract Section 55(a) of the Abkari Act, there must be export, import, transport or possession and further that possession must be while illegally transporting. So, it has become necessary to direct the court below to frame proper charge on the materials available as contemplated under Section 227 of the Cr.P.C and then proceed. So, I feel, without framing a proper charge in the case it may not be possible for the court or for the accused or even the prosecution to meet it properly. 3 CRL.A.NO.365/03 Therefore, I set aside the conviction and the sentence passed and remit the case back to the trial court and start from the position of framing charge under Section 227 of the Code of Criminal Procedure and the Sessions Judge is directed to frame the charge as contemplated under Section 227 of the Cr.P.C after hearing the accused and the prosecution and then permit the parties to adduce evidence and dispose of the matter in accordance with law. For the said purpose, the conviction and sentence is set aside and the accused and State are directed to appear before the court below on 18.9.2009. In case the accused does not appear before the court on 18.9.2009, steps may be taken to summon the accused to procure his presence for further proceedings. M.N. KRISHNAN, JUDGE cl 4 CRL.A.NO.365/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.365 OF 2003 ------------------------------ 3rd day of August, 2009 JUDGMENT