IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.Rev.Pet.No. 803 of 2000() ----------------------------- CRA.170/1997 of ADDL. SESSIONS COURT, ALAPPUZHA CC.358/1995 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- SATHEESAN, S/O KRISHNAN, CHIRATHARA VEEDU, KUNNUMMA WEST, KUNNUMMA VILLAGE. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW RESPONDENT(S)/RESPONDENT/COMPLAINANT --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 803 of 2000 ORDER ON CRL.M.P.NOS. 1068/OO & 2863/01 DISMISSED 18.3.2009 SD/- V.GIRI, JUDGE (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- Crl.R.P.803/2000 -------------------- Dated this the 18th day of March, 2009 ORDER The first accused in C.C.No.358/95 on the files of the Judicial Magistrate of First Class, Ramankary, who has been convicted for an offence punishable under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.6,000/- with a further default sentence of three months, is the petitioner in this Criminal Revision Petition. The appellate Court had confirmed the conviction but modified the sentence of imprisonment by reducing it to three months. Hence this revision. 2. The case of the prosecution in brief is that PW1, the Circle Inspector attached to Alapuzha Excise Enforcement and Anti Narcotic Special Squad had conducted patrol duty, in Kuttanad range on 12.6.1995. They saw the accused keeping and handling toddy in a temporary shed situated in the Crl.R.P.803/2000 2 property belonging to Ezharayil Anthonichan in Kannady. They inspected the shed and found the temporary owner of the shed, A1, who was present at that time. The search party found four bottles full of toddy and two glasses with the smell of toddy. A blue plastic jerry can with a capacity of 25 litres was found below the desk and it contained 22 litres of toddy. A1 did not have any licence or authority to possess toddy or sell the same. A1 was arrested and the bottles, glasses and jerry can were seized which were again sealed and the signature of the accused was affixed therein. Since A1 told that he was acting under the directions of A2, A2 was also implicated. 3. Prosecution examined, PWs1 to 4 and marked Exts.P1 to P4. MOs1 to 3 were also marked. 4. The trial Court accepted the evidence of PWs1 to 4 and found the accused guilty of the offence under Section 55(i) of the Abkari Act and convicted Crl.R.P.803/2000 3 and sentenced him in the manner aforementioned. There was nothing to connect A2 with the articles, which were found in the shed and he was therefore, acquitted. Acquittal of A2 has become final. Appellate Court confirmed the conviction but modified the sentence. 5. I heard learned counsel for the petitioner and learned Public Prosecutor. 6. The evidence regarding search of the shed on 12.6.1995, the seizure of toddy in the jerry can bottles and the glasses have been spoken to by PWs1 and 2. PW4, an independent witness, turned hostile. The charge was laid by PW3. Though a suggestion was made in the course of cross- examination of PWs1 and 2 that the accused was not taken into custody from the shed, but from outside, the Courts below preferred to accept the testimony of PWs1 and 2 and on going through the evidence, I am also inclined to accept the testimony of PWs1 Crl.R.P.803/2000 4 and 2 in this regard. I do not find any error in the approach made by the Courts below in so far as the appreciation of evidence of PWs1 and 2 are concerned. 7. But in the course of hearing of the case, my attention was drawn to another aspect which may have a bearing in the case. Accused, as stated above, was charge sheeted and was charged under Section 55(i) of the Abkari Act which reads as follows:- “Sells or stores for sales liquor or any intoxicating drug; shall be punished.” 8. The afore extracted provision 55(i) of the Act, as it reads now, is subsequent to the amendment brought about by Act 12 of 1995, which was published in the gazette on 5.8.1995. Prior to the amendment, the said Section read as follows:- Crl.R.P.803/2000 5 “sells liquor or any intoxicating drug” 9. Thus the scope of the Section was enlarged by the amendment brought into force by Act 12 of 1995, enforced with effect from 5.8.1995, by including storage or sale of liquor as punishable offence under Section 55(i). In so far as the present case is concerned, the incident had taken place on 12.6.1995 that is prior to the amendment brought about by Act 12 of 1995. At that point of time, Section 55(i) contemplated sale of any liquor or intoxicating drug as the ingredient of the offence under section 55(i) of the Act. In other words, storage for the sale of liquor, apart from the actual sale, also came within the ambit of the sub section only with effect from 5.8.1995. Mere storage of liquor, when such storage of liquor is unaccompanied by sale, was not treated as offence under section 55(i) prior to 5.8.1995. Storage for Crl.R.P.803/2000 6 the purpose of sale also amounts to an offence under Section 55(i) with effect from 5.8.1995. 10. What is noteworthy in so far as the present case is concerned is that, the charge against the accused, under Section 55(i) of the Act was to the effect that the accused was found to be in possession of toddy, in contravention of the provisions of the Abkari Act and in a position to deal with the same on 12.6.1995. 11. Accused was not charged for having indulged in unauthorized sale of toddy as such. In fact, the evidence of PWs1 and 2 also does not indicate either an attempt to sell or sale of toddy unauthorisedly by the accused. They had only stated that they had received information that there was unauthorized sale of toddy in a shop, they had gone and inspected the shop and found the first accused therein. They have not deposed that they came across the accused selling toddy nor is it a case where the accused was Crl.R.P.803/2000 7 actually charged for having sold toddy illegally in contravention of the provisions of the Act, which alone would have amounted to an offence under Section 55(i) at that point of time. Therefore, mere storage, which is what has been proved by the prosecution, was not sufficient to convict the accused under Section 55(i) of the Act, inasmuch as the incident had taken place on 12.6.1995 and for the reason that the accused was not charge sheeted for the sale of toddy unauthorisedly. 12. Learned Government Pleader submits that there is a specific allegation that the accused was in possession of the toddy and the evidence also shows that the quantity of toddy with the accused was in excess of the permissible quantity. The evidence on record shows that 22 litres of toddy was found in the shed. Therefore, the accused can be convicted for the offence punishable under Section 55(i) of the Act. Crl.R.P.803/2000 8 13. Learned counsel for the accused submits that this position had been clarified by a Bench of this Court in Mohanan v. State of Kerala (2007 (1) KLT, 845), wherein this Court held that Section 55(a) would be attracted only when persons illegally import or transport liquor are in possession of liquor while illegally importing. In the present case, permissible quantity of toddy could have been possessed by any person including the accused and in such circumstances, the offence under Section 55 (a) of the Act is not attracted nor is the accused charge sheeted for the same. 14. From the evidence available on record, it is clear that what is attracted is Section 63 of the Abkari Act. It is a lesser offence than Section 55(a) of the Act. The evidence on record suggests that the accused was in possession of liquor in excess of the permissible quantity. Possession could be either actual or constructive. In these circumstances, Crl.R.P.803/2000 9 accused is liable to be convicted for the offence under Section 63 of the Act. 15. Accordingly, Criminal Revision Petition is allowed in part. Conviction and sentence of the accused under Section 55(i) of the Act is set aside and instead, the accused is convicted for the offence under Section 63 of the Abkari act. He is sentenced to pay a fine of Rs.5,000/-. Fine amount shall be paid within four weeks from the date of receipt of a copy of this judgment. In default of payment of fine, he shall undergo simple imprisonment for a period of three months. V.GIRI, Judge mrcs