IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 1675 of 2002() ------------------------------ CC.1316/1996 OF JUDICIAL I CLASS MAGISTRAGE COURT, VADAKARA CRA.324/1999 OF ADDL. DISTRICT & SESSIONS FAST TRACK (ADHOC-II) COURT, KOZHIKODE ................ REVISION PETITIONER / APPELLANT / ACCUSED: ------------------------------------------------------------------------ DINESAN, S/O. KUNHIKANNAN, POOKKOTTUKUNIYIL HOUSE, EDACHERI AMSOM DESOM, VADAKARA. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS / RESPONDENTS / COMPLAINANT: ------------------------------------------------------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. RAMANAND K.B THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P..No. 1675 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 31st day of January, 2011 JUDGMENT Revision petitioner is the accused in C.C. No. 1316 of 1996 on the file of the Judicial First Class Magistrate, Vadakara and the appellant in Crl.A.No.324 of 1999 on the file of the Court of the Addl. District and Sessions Judge Fast Track Court (Adhoc- II), Kozhikode. In this appeal he challenges the judgment of the learned Magistrate dated May 26, 1999 convicting the accused under section 58 of the Abkari Act and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs.15,000/-, in default to undergo simple imprisonment for a further period of three months which was modified by the learned Sessions Judge by judgment dated July 18, 2002 to simple imprisonment for three months and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for one month. 2. The case of the prosecution, as unfolded in evidence before the trial court, in brief, is this:- PW4 is the then Preventive Officer of Vadakara Excise Range. On September 30, Crl.R.P. 1675/2002 2 1995 at about 6.15 p.m. while he along with other Excise officials were on patrol duty they found the accused carrying MO1 can in his hand and on examination it was found that the can contained five litres of illicit arrack. They arrested the accused, seized the can MO1 and took the sample. PW4 prepared mahazar Ext.P1. He produced the accused before the Excise Range Office, Vadakara. PW3 the then Excise Range Officer, Vadakara Excise Range Office registered the case against him and produced him before the trial court. After conducting investigation, PW3 filed the charge before the committal court. 3. The accused on appearance before the trial court pleaded not guilty to a charge under section 58 of the Abkari Act. PWs.1 to 4 were examined and Exts.P1 and P2 and MOI were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of the evidence found the accused guilty of the offence punishable under section 58 of the Abkari Act, convicted him thereunder and sentenced him as Crl.R.P. 1675/2002 3 aforesaid. On appeal by the accused, the learned Sessions Judge confirmed his conviction and modified the sentence as mentioned above. The accused has come up in revision challenging his conviction and sentence. 5. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 58 of the Abkari Act by the trial court, which was confirmed in appeal by the lower appellate court, can be sustained ? If not, what is the offence committed by the accused ? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh ? 7. PW4 Detecting Officer and PW3 Excise Inspector have testified in terms of the prosecution case before the trial court. No serious discrepancies were brought out during their cross examination to discredit their evidence. Further their evidence is supported by Exts.P1 and P2. The learned counsel for the revision petitioner argued that as independent witnesses PWs.1 and 2 turned hostile and did not support the prosecution, the Crl.R.P. 1675/2002 4 evidence of PWs. 3 and 4 being the official witnesses cannot be relied on. There is no substance in the above contention. It is settled law that the evidence of official witnesses, if found to be trustworthy and reliable, can be accepted and can form the basis of conviction. In the present case the evidence of Pws.3 and 4 proved beyond doubt the search and recovery of illicit liquor from the accused. Admittedly, they have no prior acquaintance or enmity towards the accused to foist a false against him. Therefore, in my view, the trial court as well as the lower appellate court are perfectly justified in accepting their evidence and coming to the conclusion that the accused was found in possession of illicit arrack as alleged by the prosecution. 8. The next question for consideration is whether the accused can be found guilty of the offence punishable under section 58 of the Abkari Act. The incident happened on September 30, 1995. At that time arrack was not prohibited. The permissible quantity of arrack that one can possess without permit was 750 ml. as per S.R.O. No.89/69 under G.O.(P) No.82/69/RD dated February 19, 1969 issued under sections 10 Crl.R.P. 1675/2002 5 and 13 of the Abkari Act. Section 58 of the Abkari Act provides that whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under the Act not to have been paid therefor, shall be punishable as provided therein. 9. It is clear from the above that mere possession of liquor is not sufficient to attract an offence punishable under section 58 of the Abkari Act. He must have been in possession without lawful authority, knowing the same to be unlawfully imported, transported or manufactured, or knowing that the duty, tax or rental payable not to have been paid thereof. In the present case, the prosecution has no case that the accused was found in possession of the liquor knowing that it was unlawfully manufactured or he was in possession of the liquor in the course of import, export or transit. That being so, the accused cannot be found guilty of the offence punishable under section 58 of the Abkari Act. The above position has been made clear by a Division Bench of this court in Surendran V. Excise Inspector (2004(1) Crl.R.P. 1675/2002 6 KLT 404). The principle laid down in the above decision was also followed in the order in Crl.R.P. No.1674 of 2002, a copy of which is made available to me by the learned counsel for the revision petitioner. In the light of the principles laid down in the above mentioned cases, the accused in this case cannot be found guilty of the offence punishable under section 58 of the Abkari Act. 10. The next question for consideration is what was the offence committed by the accused. He was found in possession of arrack in excess of the permissible quantity. Therefore, he can be found guilty of possession of illicit arrack in contravention of sections 10 and 13 of the Abkari Act and the above mentioned notification issued by the Government, which is punishable under section 63 of the Abkari Act. Therefore, I set aside the conviction of the revision petitioner under section 58 of the Abkari Act and convict him under sections 10 and 13 of the Abkari Act read with section 63 of the Abkari Act. 11. Next it has to be considered what is the proper punishment that can be imposed. As I have set aside his Crl.R.P. 1675/2002 7 conviction under section 58 of the Abkari Act and convicted him under section 63 of the Abkari Act, the sentence imposed by the trial court, which was modified in appeal by the lower appellate court, is set aside. He is sentenced to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for one month under section 63 of the Abkari Act. One month's time is granted for payment of the fine. His bail bonds are cancelled. The revision petition is allowed in part. P.Q.BARKATHALI, JUDGE mn Crl.R.P. 1675/2002 8 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P..No. 1675 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 31-1-2011