IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 94 of 2001 ------------------------------------------ CRA.256/1998 of ADDL.SESSIONS COURT, KOZHIKODE CC.1142/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOYILANDY .................... REVN. PETITIONER/APPELLANT/ACCUSED: KARTHI, W/O GANGADHARAN, KARUMBAPOYIL, SIVAPURAM AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.366/2001 IN CRL.R.P.NO.94/2001 DISMISSED 21.5.2009 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.P. Balachandran, J. -------------------------- Crl.R.P.No.94 of 2001 -------------------------- ORDER The accused in C.C.No.1142/96 on the file of the Judicial First Class Magistrate's Court, Koyilandy, who is convicted for offence under Section 58 of the Kerala Abkari Act and sentenced thereunder to undergo simple imprisonment for three months and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for two months, is the revision petitioner, she being aggrieved by the said conviction, which was confirmed also in appeal by the Sessions Judge, Kozhikode. 2. The case originated on a complaint filed by the Excise Inspector, Balussery. The case of the complainant, in brief, is that when the Preventive Officer and party attached to the Balussery Excise Range was conducting patrol duty on 28.6.1995 and reached near the stationery shop of Thattankandi Krishnankutty Nair at about 4.45 p.m., they found CRRP 94/01 2 the petitioner/accused keeping in possession 2½ litres of illicit arrack in a kannas of 2½ litres capacity and thereby she has committed an offence punishable under Section 58 of the Abkari Act. 3. The arguments advanced before me by the learned counsel for the petitioner without going to the merits of the case is that the occurrence in the instant case was on 28.6.1995 at a time when there was no ban on arrack, as arrack was banned only with effect from 1.4.1996 and that therefore, for a conviction being entered into against the petitioner under Section 58 of the Abkari Act as it stood on the date of occurrence on 28.6.1995, the prosecution was bound to prove that the petitioner was in possession of arrack knowing the same to have been unlawfully imported or manufactured or knowing that the duty, tax or rental payable under the Act had not been paid and that in the instant case, the prosecution has miserably failed to establish on evidence that the petitioner was having in her possession the alleged illicit liquor CRRP 94/01 3 knowing the same to have been unlawfully imported or manufactured or knowing that the duty, tax or rental payable thereof under the Act had not been paid. According to the learned counsel for the petitioner, there is absolutely no evidence in the case, given by the Excise officials, that the petitioner was having in her possession arrack either with the knowledge that it had not been lawfully imported or manufactured or with the knowledge that the duty, tax or rental payable thereof had not been paid. Consequently, therefore, according to the learned counsel, it cannot be held even that the alleged arrack found to be in possession of the petitioner was illicit. 4. Learned Public Prosecutor submits that the strength of alcohol content in the arrack, on chemical examination, was found to be lesser than the alcoholic content prescribed for arrack under the Act. That by itself is no indication that the petitioner was having knowledge that the arrack was unlawfully imported or manufactured or that she was CRRP 94/01 4 having knowledge that the duty, tax or rental payable under the Act on the said arrack had not been paid. 5. Learned counsel for the petitioner has also cited a decision of this Court in Santhosh v. State of Kerala (2007 (2) KLT 27), wherein, this Court had occasion to consider as to whether possession of articles which are normally used for the purpose of manufacturing liquor can constitute an offence under Section 55(g) of the Abkari Act in the absence of cogent and probative indications to justify a conclusion that those materials and articles were possessed by the accused for the purpose of manufacturing liquor. This Court held that it is not the law that possession of such materials by itself will amount to an offence under Section 55(g) of the Abkari Act in the absence of satisfactory allegations or materials to show that such possession was for the purpose of manufacturing illicit liquor. CRRP 94/01 5 6. In the instant case, there being no evidence to establish that the petitioner was in possession of arrack knowing either that it was illicit arrack unlawfully imported or manufactured or that duty, tax or rental thereof had not been paid, the allegations do not constitute an offence under Section 58 of the Abkari Act. In the circumstances, the conviction and sentence passed concurrently by the courts below against the petitioner are unsustainable and deserve to be set aside. In the result, allowing this revision, I set aside the conviction and sentence passed concurrently by the courts below against the petitioner for offence under Section 58 of the Abkari Act and acquit her of the said offence. 21st May, 2009 (K.P.Balachandran, Judge) tkv CRRP 94/01 6 K.P.Balachandran, J. -------------------------- Crl.R.P.No.94 of 2001 -------------------------- ORDER 21st May, 2009