IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 962 of 2002() ---------------------------------- SC.111/2000 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- SUDHAKARAN, S/O.CHUKKATHU VELAYUDHAN, PAREKKATTUKARA, MURIYAD, MUKUNDAPURAM TALUK. BY ADVS.MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.7824/2002 IN CRA. NO.962/2002 DISMISSED 19/06/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 962 OF 2002 = = = = = = = = = = = = = = = Dated this the 19th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.111/00 of the 3rd Addl. Sessions Judge, Fast Track Court-I, Thrissur. The accused was charge sheeted for an offence u/s 55(a) of the Abkari Act and the Court convicted him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months. The case of the prosecution is that on 5.6.1997 at 6 p.m. on the public road in front of the house of Asokan the accused was found in possession of two bottles of 750 ml each and one bottle of 375 ml of illicit liquor and therefore he has committed the offence u/s 55(a). The learned counsel for the appellant very strongly contends before me that an offence u/s 55(a) will not lie in the light of the decisions of this Court. She had referred to the decision reported in Surendran v. Excise Crl.A. 962 OF 2002 -2- Inspector (2004 (1) KLT 404) and 2007 (1) KLT 845 Mohanan v. State of Kerala. It has been held in that decision that S.55(a) of the Abkari Act is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing. There is no case that the accused was illegally transporting or that the possession of him was while illegally importing. When it cannot be proved S.55(a) of the Act may not have application to the facts of the case. If it is illegal arrack certainly S.8 of the Abkari Act will come into ply but chemical examiner's report only refers to a reddish brown liquid alleged to be coloured illicit liquor. So unless there is concrete proof to show that the liquid seized was arrack S.8 of the Abkari Act also will not apply. Then with the help of the learned counsel appearing for both the sides I examined whether S.58 of the Abkari Act can be attracted in this case. In order to attract S.58 it is necessary to state that the accused was aware of the fact that it had been illegally imported or manufactured or duty etc. had not been paid. Crl.A. 962 OF 2002 -3- There is no evidence tendered on that basis also to prove the said fact against the accused. So necessarily S.58 of the Abkari Act also cannot be attracted in this case. Now what shall be the offence that is proved. I feel it is only S.63 of the Abkari Act where the Section says that any other act against the provisions of the enactment shall come u/s 63 of the Act. 2. Now going to the facts of the case the accused was found in possession of three bottles of liquor and PW1 had conducted the detention. He had deposed before the Court that they saw the accused in suspicious circumstances and he was restrained and examined and it was found that he had three bottles of coloured liquor and on test and smell they were satisfied that it is illicit liquor and thereafter sample was taken in the presence of the accused and it was sealed. Though he had been cross-examined at length nothing has been brought out to discredit his evidence PW5 is the preventive officer. He also accompanied PW1 on the date of incident and he has also spoken about the seizure of liquor, Crl.A. 962 OF 2002 -4- sample of the liquor and sampling of the liquor. Nothing is brought to discredit his evidence as well. So the evidence of PW1 and 5 would indicate that the accused was found in possession of illicit liquor but in the absence of any evidence to show that the said possession was in the process of illegally importing or that the accused had knowledge that it is either transported or imported. So the Court below was not right in holding that the accused is guilty of the offence u/s 55(a). The only provision is S.63 and it provides a punishment of fine of Rs.5,000/- or with imprisonment or a term which may extend to two years. Here the quantity involved is very little which does not appear to be one for sale also. Therefore interest of justice can be met by imposing a sentence of fine on him, that is, imposing a fine of Rs.5,000/-. In the result the appeal is disposed of as follows. (1) The conviction and sentence passed by the learned Asst. Sessions Judge, Thrissur is set aside and I find that he is not guilty of the offence u/s 55(a) of the Abkari Act. Crl.A. 962 OF 2002 -5- (2) He is found guilty u/s 63 of the Abkari Act and he is convicted thereunder and sentenced to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of two months. If he does not pay the fine on or before 30th July, 2009, the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 962 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 962 OF 2002 = = = = = = = = = = = J U D G M E N T 19th June, 2009