IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 1108 of 2003() ---------------------------------- SC.131/1998 of THE COURT OF SESSIONS COURT, THALASSERY. .................... APPELLANT(S): ACCUSED: ---------------------- C. BALAKRISHNAN, S/O. ANDY, CHEMBAN HOUSE, MANATHANA AMSOM PERAVOOR, THALASSERY TALUK. BY ADV. MR.SUNNY MATHEW RESPONDENT(S): COMPLAINANT: --------------------------- THE S.I. OF POLICE, KUTHUPARAMBA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1108 OF 2003 ------------------------------ Dated this the 18th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, (Adhoc-II), Thalassery in S.C.No.131/1998. The court below found the accused guilty under Section 55(a) of the Abkari Act and convicted him to undergo R.I for a period of one year and to pay a fine of Rs.One lakh and in default, 6 months further imprisonment. It is the said decision, that is challenged before this Court in appeal. The points that arise for determination are (1) Whether the court below was right in convicting the accused under Section 55(a) and (2) Whether any other offence will be attracted on the facts and circumstances (3) Is there anything to interfere with the decision rendered by the Sessions Court. 2. Points 1 to 3: It is the case of the prosecution that on 28.10.1997 at about 7.15 p.m the accused was found in possession of 15 2 CRL.A.NO.1108/2003 bottles of Indian made foreign liquor. It is alleged that 12 bottles were seized from the 4 kneecaps used by him and 3 bottles were taken from the other parts of the body. To prove the case, the prosecution had examined PWs 1 to 4, Exts.P1 to P4 and MO1 series were marked. PW1 is the S.I of Police. He had deposed before the court that while he was working as the S.I of Police in Koothuparamba Police Station, on 28.10.1997 when he and his police party went for patrol duty, they found the accused in a suspicious circumstance and thereafter on search and seizure, recovered 15 bottles of Indian made foreign liquor known by the name Royal Gold Cup Extra Smooth Whisky. It is deposed by him that sample was taken from one bottle, sealed, sent for chemical examination and later the accused was arrested and produced before the court. In the cross examination, nothing has been brought out to discredit his evidence. PW2 is another Head Constable, who was in the patrolling party and he had also deposed in line with the evidence of PW1 regarding the finding of the accused, searching of his body and recovering the bottles of whisky from 3 CRL.A.NO.1108/2003 the accused. His cross examination also has not ended in favour of the accused. It is also stated by him that 1 ½ liters can be possessed at that point of time. PW4 is the officer, who had laid the charge and had submitted the forwarding note etc. Chemical Examiner’s Report would show that the sample contained percentage of ethyl alchol. There has been no undue delay in producing the sample or sending it for chemical examination. So, from the materials available, one can easily hold that the accused was found in possession of 15 bottles of Indian made foreign liquor without any lawful authority. 3. The next question is whether he can be convicted under Section 55(a) of the Abkari Act. In the decision reported in Raman v. State of Kerala (2007(4) KLT 223), this Court had laid down the following proposition that “ the case should fall within the ambit of Section 55(a) only when a person was found to be in possession of liquor in the course of import, export, transport or transit of the goods. Under Section 55 (a) of the Abkari Act, the prosecution must allege and prove that possession of the contraband liquor was incidental or in 4 CRL.A.NO.1108/2003 connection with export, import, transport or transit of liquor”. A perusal of the said judgment would reveal that it was a case where 44.640 liters of Indian made foreign liquor was possessed by the accused in that case. The court considered the matter in the light of the decision rendered by a Division Bench of this Court and arrived at the finding that Section 55(a) would not be attracted but, Section 63, that would be attracted. There cannot be any doubt that unless the possession is proved to be in connection with export, import, transport or transit of liquor, Section 55(a) cannot be applied. Now, there is no case for the prosecution that these bottles were possessed by him for export, import, transport or transit. When it is so, an offence under Section 55(a) will not lie. Whether it will lie under the other provision, is the next question. In the said case referred by me, this Court had held that there is violation of the Foreign Liquor Rules and the possession is not authorized or licensed and therefore Section 63 of the Abkari Act would apply. 4. In the case before me also, the only possibility is to 5 CRL.A.NO.1108/2003 hold that the offence committed by the accused can fall only under Section 63. So, from this discussion, I hold that the finding of guilt under Section 55(a) is liable to be set aside. I further hold that it will attract Section 63 of the Abkari Act. I feel that interest of justice can be met by imposing the maximum fine of Rs.5,000/= in this case. caution 5. In the result, I dispose of the criminal appeal as follows: 1. The finding of guilt under Section 55(a) of the Abkari Act is set aside. 2. The accused is found guilty under Section 63 of the Abkari Act . 3. The accused is sentenced to pay a fine of Rs.5,000/= and in default, to undergo S.I for a period of two months. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1108/2003