IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 CRL.A.No. 909 of 2003() ---------------------------------- SC.114/2002 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... APPELLANT(S): ----------------------- RAMU, S/O. CHAMMY, KUMBHARA COLONY, KILLINIKADAVU DESOM, KONDAZHI VILLAGE, THALAPPILLY TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.No. 909 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 2nd day of December, 2010 JUDGMENT This appeal by the accused is directed against the judgment of the III Addl. Sessions Judge (Adhoc) (Fast Track Court No.I), Thrissur in S.C. No.114 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 simple imprisonment for six months. 2. The case of the prosecution as testified by PW1 to PW5 before the lower court, in brief, is this:- PW1 is the then Excise Inspector, Pazhayannur Excise Range. PW5 is the then Preventive Officer of the said Excise Range. On June 18, 1997 at 5 p.m. he was on patrol duty along with PW5. When they reached the bus stop at Mayannur, they saw the accused with a plastic bag. On examination, he was found in possession four bottles, each containing 750 ml. of Indian Made Foreign Liquor. He arrested the accused from CRA 909/2003 2 the spot and prepared Ext.P1 seizure mahazar and Ext.P2 occurrence report. He brought the accused to the office and registered the case against him. 3. PWs.2 and 3 who are independent witnesses who allegedly attested the seizure mahazar. PW4 is the Village Officer who prepared Ext.P6 sketch. The case was investigated by PW5 Preventive Officer who accompanied PW1 and after completing the investigation, he laid charge before committal court, Judicial First Class Magistrate Court, Wadakkanchery. 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 First Addl. Asst. Sessions Court, Thrissur and later to the trial court for trial and disposal. 5. The accused on appearance before the trial court CRA 909/2003 3 pleaded not guilty to the charge under section 55(a) of the Abkari Act. PWs.1 to 5 were examined and Exts.P1 to P6 and MOs.1 to 3 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., he denied having committed any offence. No defence evidence was adduced. 6. On an appreciation of the evidence, the trial court 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. Learned counsel for the appellant argued that the alleged contraband article seized from the accused was not Indian Made Foreign Liquor and the allegation was that the accused was found in possession of 3 litres of Indian Made Foreign Liquor and hence charge under section 55(a) of the Abkari Act will not lie against him and that he can at the CRA 909/2003 4 most be convicted for violation of the provisions of Foreign Liquor Rules under section 63 of the Abkari Act. 9. Learned Public Prosecutor, on the other hand, supported the impugned judgment. 10. The following points arise for consideration : 1) Whether search and seizure of Indian Made Foreign Liquor from the appellant is proved ? 2) Whether the conviction of the appellant under section 55(a) of the Abkari Act can be sustained ? 3) Whether the sentence imposed on the appellant is excessive ? On the side of the prosecution to prove the search and seizure of the Indian Made Foreign Liquor from the appellant, PWs.1 to 5 were examined before the lower court. PWs.1 and 5 were the then Excise Inspector and Preventive Officer of Pazhayannur Excise Range. They testified in a convincing manner regarding the seizure of the four bottles of Indian Made Foreign Liquor from accused. I have gone through their evidence. Nothing was brought out in cross examination to discredit their evidence. CRA 909/2003 5 No serious discrepancies were pointed out in their evidence to disbelieve them. Further their evidence is supported by Exts.P1 to P6. 11. Learned counsel for the appellant argued that PWs.2 and 3, the independent witnesses, turned hostile and did not support the prosecution and PWs.1 and 5 are Excise officials and that therefore the uncorroborated version of PWs.1 and 5 cannot be believed. There is no substance in the above contention. It is settled law that evidence of official witnesses if found reliable can be believed and can form basis of conviction. In the present case there is nothing to suspect the credibility of PWs.2 and 3. Therefore, in my view the trial court is perfectly right in relying on their evidence regarding the search and seizure of the contraband articles from the accused and holdingthat the seizure of the bottles containing liquor from the accused is proved. 12. The next question for consideration is whether the accused/appellant has committed any offence under section CRA 909/2003 6 55(a) of the Abkari Act. In the present case the allegation is that the accused was found in possession of four bottles each containing 750 ml. of Indian Made Foreign Liquor. The incident happened in 1997. During that period the permissible quantity of Indian Made Foreign Liquor that can be possessed by a person is 4.5 litres as seen 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. That being so, in the light of the principle laid down in Mohan V. State of Kerala (2004(1) KLT 845), the accused can only be found guilty of violations of sections 10 and 13 of the Abkari Act for having been in possession of Indian Made Foreign Liquor in excess of the permissible quantity prescribed under Government Notification mentioned above, which is punishable under section 63 of the Abkari Act. Therefore, the conviction of the appellant under section 55(a)of the Abkari Act by the trial court is set aside and he is convicted under section 63 of the Abkari Act. CRA 909/2003 7 13. As regards the sentence, the maximum sentence that can be imposed under section 63 of the Abkari Act is a fine of Rs.5,000/- or imprisonment which may extent to two years. Taking into consideration the fact that no previous conviction is pleaded or proved against the appellant and that the quantity of liquor seized from him only 4 bottles (3 litres) I feel that a sentence of fine of Rs.5,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice. 14. In the result, the conviction of the appellant under section 55(a) of the Abkari Act is set aside and he is convicted under section 63 of the Abkari Act 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. The appeal is allowed in part as found above. P.Q.BARKATHALI, JUDGE mn CRA 909/2003 8 CRA 909/2003 9 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.A.No. 909 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ JUDGMENT 2-12-2010