IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.A.No. 2054 of 2003 ------------------------------- SC.214/2001 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC I), KOZHIKODE ......................................... APPELLANT(S): ACCUSED. -------------------------------------- V.RAJAN, AGED 52 YEARS, S/O.RAGHAVAN,VADAKKAYIL HOUSE, AVOLAM P.O., PERODE, VIA VADAKARA. BY ADV. SRI.P.M.SAJI SRI.ANOOP U.R. RESPONDENT(S): RESPONDENT. ---------------------------------------------- THE STATE OF KERALA, THROUGH EXCISE INSPECTOR,NADAPURAM RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.2054 OF 2003 ------------------------------ Dated this the 27th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.214/2001 of the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode-1. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and was found guilty, convicted and sentenced to undergo imprisonment for two years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for a period of nine 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 the materials are sufficient to hold the accused guilty under Section 55(a) of the Abkari Act (2) in case of guilt, whether the sentence awarded is excessive. 3. Points 1 and 2: Heard the learned counsel for the appellant and the learned Prosecutor. It is the case of the prosecution that on 2 CRL.A.NO.2054/03 8.4.1999 at about 2 p.m, the Preventive Officer on reliable information found the accused carrying 14 bottles of Indian made foreign liquor of 375 ml each through the peringathur- Nadapuram road in a jute bag without any permit. The bottles did not bear the security label of the Kerala State Beverages Corporation, hereinafter referred to as the KSBC. The accused was also not able to account for his possession and therefore, the bottles were opened, smelt and tasted thereafter sample was taken, sealed and the matter was proceeded with. 4. In the trial court, PWs 1 to 6 were examined, Exts. P1 to P9 and MOs1 and 2 were marked. Ext.P3 is the seizure mahazer. A reading of the seizure mahazer would reveal that the accused was found in possession of 14 bottles of 375 ml foreign liquor which accounts for 5.250 litres. PW2 is the person who had conducted the detection and seizure. He had deposed before the court that on seeing the accused in a suspicious circumstance, the jeep was stopped and the accused was found to be in possession of 14 bottles of French 3 CRL.A.NO.2054/03 brandy. It did not contain the seal of the KSBC. He had also deposed that it was being transported from Mahe to State of Kerala, which is against the rules. He had been cross examined at length and nothing has been brought out to discredit his evidence. 5. PW3 is also a Preventive Officer and he was accompanying PW2. He had deposed before the court that the accused was apprehended with a bag which contained 14 bottles of French brandy and it was brought from Mahe to the native place for the purpose of sale and the said liquor was not permitted to be sold within the State of Kerala. He would also depose about the sampling and sealing. 13 bottles produced were marked as MO1 series. MO2 is a bag. He had been cross examined at length and nothing is brought out to discredit his evidence in this case. 6. PW4 is a witness who had turned hostile to the prosecution and he has not supported the case at all. PW5 equally has refused to support the case of the prosecution. PW6 is a person who had conducted the investigation, laid the 4 CRL.A.NO.2054/03 charge and recorded the statement of the witnesses. 7. Ext.P6 is the properly list which would show that it had reached the court on 9.4.1999 that is immediately on the next day. Ext.P7 is the forwarding note which is also received by the court on 9.4.1999. Ext.P9 is the chemical Examiner's Report which would show that the seal of the bottle was intact and found tallied with the sample seal provided. The report would further show that the sample contained 42.27% by volume of ethyl alcohol. So, the search, seizure and possession of 14 bottles of Indian made foreign liquor in the possession of the accused is proved now. Admittedly as seen from the records there is no seal of the KSBC in any of the bottles. 8. The learned counsel for the appellant very strongly contends before me that Indian made foreign liquor is a permissible liquor which can be consumed within the State of Kerala and therefore, the only question that may arise is regarding the possession of excess quantity for which no offence under Section 55(a) will lie. At the most, it will attract 5 CRL.A.NO.2054/03 only Section 63 of the Abkari Act. It has to be understood that excess possession of Indian made foreign liquor within the State of Kerala pertains to a situation where the bottles are purchased from the KSBC in excess of the quantity permitted to be possessed and in such cases it only becomes a violation of the rules made under the Indian made Foreign Liquor Rules. But in the case before me, it is stated that the liquor is transported from Mahi to the State of Kerala and it is a liquor that cannot be sold in the State of Kerala for the reason that it does not have the seal of the KSBC. So, it is argued by the learned prosecutor now that it is the transport of a liquor which is not permitted to be sold in the State of Kerala from the neighbouring State that is from Mahe and therefore, import as contemplated under Section 55(a) will be attracted in this case. 9. I feel that argument raised by the learned Prosecutor appears to be sound and acceptable even otherwise it can be straight away held that Section 58 will be attracted. But as the liquor is found to be transported from a neighbouring 6 CRL.A.NO.2054/03 State, Section 55 (a) will be attracted and as the presumption which is available under Section 64 is not rebutted by the accused, then necessarily the case of the prosecution has to be accepted. Therefore, I hold that the court below was not at fault in finding the accused guilty under Section 55(a) of the Abkari Act. 10. Now turning to the question of sentence. The court below has sentenced the accused to undergo imprisonment for two years and to pay a fine of Rs. One lakh and in default to undergo imprisonment for 9 months. I feel it is on the higher side. The quantity of liquor is 5.250 litres of Indian made foreign liquor. In his 313 questioning, the accused had stated that he is a person suffering from ailment to liver and further, he is also suffering from Rheumatism on both the legs. It can also be seen that by this time, he is aged 60 years. So, taking into consideration all these aspects, I am inclined to reduce the sentence to three months S.I with a fine of Rs. One lakh and a default of sentence of one month. 11. In the result, the criminal appeal is disposed of as 7 CRL.A.NO.2054/03 follows: 1. The finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo S.I for a period of three months and to pay a fine of Rs. One lakh and in default to undergo S.I for one month. The accused is also entitled to get set off as contemplated under Section 428 of the Cr.P.C. M.N. KRISHNAN,JUDGE. cl 8 CRL.A.NO.2054/03