IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.THANKAPPAN FRIDAY, THE 17TH AUGUST 2007 / 26TH SRAVANA 1929 CRL.A.No. 381 of 2003() ----------------------- SC.139/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT: ACCUSED ------------------ P.JAYANTHA S/O. KRISHNA VELICHAPPADU, PACHAMPALLAM, ICHILAMKODU, KASARAGOD DISTRICT BY ADV. SRI.T.G.RAJENDRAN RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN CRL.M.P. NO. 2127 OF 2003 IN CRL. APPEAL NO. 381 OF 2003. DISMISSED 17.8.2007 Sd/- (K.THANKAPPAN, JUDGE) K.THANKAPPAN, J. --------------------------------------------- CRL. APPEAL NO. 381 OF 2003 --------------------------------------------- Dated this the 17th day of August, 2007 JUDGMENT The sole accused in S.C. No. 139 of 2000 on the file of the Additional Sessions Court (Ad hoc-I), Kasaragod is the appellant. He faced trial for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case against the appellant - accused was that on 26.1.1999 at 4.50 p.m., he was found in possession of 24 quarter bottles of Indian made foreign liquor without any licence or transit permit and that the same was intended to be sold only in the State of Karnataka. To prove the case against the appellant, the prosecution examined PWs.1 to 4 and produced Exts. P1 to P5 as well as MOs.1 and 2. No oral or documentary evidence was adduced on the side of the defence. After closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. Denying the allegations, he stated that the case was foisted against him. However, after considering the evidence adduced by the prosecution, the trial court found the appellant – accused guilty under CRL.APPEAL NO.381/2003 2 Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. The appellant was also given the benefit under Section 428 Cr.P.C. The above conviction and sentence are challenged in this appeal. 3. This Court heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 4. The learned counsel appearing for the appellant raised the following contentions before this Court: (i) the trial court committed serious error in finding the appellant guilty under Section 55(a) of the Abkari Act relying on the evidence adduced by the police officials alone as there was no independent evidence to support the prosecution case, (ii) the finding of the trial court that the appellant committed offence punishable under Section 55(a) of the Abkari Act is not legally sustainable in the light of the decisions of this Court reported in Surendran v. Excise Inspector, 2004(1) K.L.T. 404 and Sudhepan @ Aniyan v. State of Kerala, 2005(2) K.L.D. (Cri) 631, (iii) even if the evidence of PWs.1 and 4 is accepted, the appellant can be convicted only under Section 63 of the Abkari Act as CRL.APPEAL NO.381/2003 3 he was found in possession of Indian made foreign liquor beyond the permissible limit prescribed by the Government of Kerala as per the notification issued under Sections 10 and 13 of the Abkari Act and (iv) the sentence awarded by the trial court is excessive. 5. In the light of the above contentions raised by the learned counsel appearing for the appellant, the question to be decided in this appeal is whether the judgment of the trial court is legally sustainable or not. 6. The trial court mainly relied on the evidence of PWs.4 and 1 to find the appellant guilty of the charges levelled against him. PW.4 was the Sub Inspector of Police, Kasaragod Police Station. He stated that while he and the Assistant Sub Inspector of Police were on law and order duty, they saw the accused standing at Kunjathur bus stop with a plastic bag in his hand and on examining the bag, it was found to contain 24 bottles each containing 180 ml. of Bose Whisky. This witness further stated that he took two bottles of liquor as samples, arrested the accused and seized the contraband articles as per Ext.P1 seizure mahazar. The prosecution, though examined PWs.2 and 3 as independent witnesses, they turned hostile to the prosecution. But they admitted their signature in Ext.P1 mahazar. PW.1 who had accompanied PW.4 corroborated the CRL.APPEAL NO.381/2003 4 evidence of PW.4 in all material particulars. 7. There is no legal bar in proving the prosecution case on the evidence of the investigating officers alone, provided their evidence is free from doubt and infirmity. In the above circumstances, the trial court accepted the evidence of PWs.1 and 4 and found that the appellant – accused was in possession 24 bottles, each containing 180 ml. of Indian made foreign liquor without any licence or transit permit. 8. The next question to be considered is whether the appellant can be convicted under Section 55(a) of the Abkari Act. The prosecution case is that the contraband articles seized from the appellant was imported from the State of Karnataka and that the same was kept for sale. It is seen that no investigation was conducted in this regard and the prosecution had not actually proved that the contraband articles found in the possession of the appellant were in connection with export, import, transport or transit. That being so, the finding entered by the trial court that the appellant committed offence punishable under Section 55(a) of the Abkari Act is not legally sustainable. 9. Having accepted the evidence of PWs.1 and 4 and Ext.P1 seizure CRL.APPEAL NO.381/2003 5 mahazar, the next point to be considered is the nature of the offence committed by the appellant. It has been proved from the evidence of PWs.1 and 4 that 24 quarter bottles each containing 180 ml. of Indian made foreign liquor were seized from the appellant and that the appellant was carrying the same without any licence or transit permit. The appellant has, therefore, violated the provisions of Rule 11 of the Foreign Liquor Rules which prohibits possession of foreign liquor exceeding the quantity notified by the Government of Kerala under Sections 10 and 13 of the Abkari Act. Violation of the provisions of Rule 11 of the Foreign Liquor Rules can be punished only under Section 63 of the Abkari Act. As per the notification issued by the Government of Kerala, the maximum quantity of Indian made foreign liquor that can be kept by a person during the relevant time was 5 litres. The appellant was found in possession of less than 4 litres of Indian made foreign liquor. Hence, the appellant can be convicted only under Section 63 of the Abkari Act. Considering the fact that the incident happened in the year 1999, this Court is of the view that a sentence of fine of Rs.3000/- will meet the ends of justice. 10. Accordingly, the conviction entered and sentence awarded by the trial court under Section 55(a) of the Abkrai Act are set aside. The appellant is convicted under Section 63 of the Abkari Act and he is CRL.APPEAL NO.381/2003 6 sentenced to pay a fine of Rs.3000/- and in default of payment of fine, to undergo simple imprisonment for three months. The Crl. Appeal is allowed in part. (K.THANKAPPAN, JUDGE) sp/ CRL.APPEAL NO.381/2003 7 K.THANKAPPAN, J. CRL.APPEAL NO.381/03 JUDGMENT 17TH AUGUST, 2007.