IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 672 of 2009(D) ----------------------------------- SC.290/2005 of ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE ................................................................... APPELLANT(S): APPELLANT --------------------------------------- BABU, S/O.CHEKKOTTI, CONVICT NO.6312, CENTRAL JAIL, KANNUR BY ADV. SRI.D.AJITH KUMAR [STATE BRIEF] RESPONDENT(S): ------------------------ STATE OF KERALA BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.672 OF 2009 -------------------------- Dated this the 6th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Sessions Judge, Fast Track (Ad hoc) Court - I, Kozhikode, in S.C.290/2005. The accused was charge sheeted for the offence u/s.55(a) of Abkari Act read with Rule 9 of the Foreign Liquor Rules. He was found guilty for the same and sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1 lakh, in default of which to undergo imprisonment for a period of 6 months. It is against that decision, with a petition to condone the delay, the accused has come up with this appeal from the jail. Since he has no legal assistance, this court appointed Adv.Sri.Ajithkumar D., to be the state brief. The points that arise for determination are, 1. Whether the materials are sufficient to hold the accused guilty u/s.55(a) of Abkari Act r/w. Rule 9 of the CRL.A.No.672 OF 2009 2 Foreign Liquor Rules ? 2. In case of guilt, whether the quantum imposed is excessive ? 2. Points 1 and 2 :- Heard the learned State Brief, as well as the prosecutor. It is the case of the prosecution that on 8.10.2004 while the Sub Inspector of police, Payyoli, was on patrolling and when he reached near Meladi road junction, they found the accused in a suspicious circumstance and therefore intercepted him and on examination found that he had a plastic bag with 22 bottles of 180 ml. Vin grape brandy, kept in a card board box inside the plastic cover. All the bottles contained label `sale in Pondicherry only'. Thereafter one of the bottles was opened, tasted and smelt and on realising that it was brandy, it was seized and properly sealed and thereafter the accused was arrested and produced before the court. The prosecution has examined PW5, Exts.P1 to P8 and M.O.1 to M.O.3 were marked. The court found accused guilty and convicted him thereunder. PW1 to PW4 are all police officials. PW1 is the person who had detected the case. He had CRL.A.No.672 OF 2009 3 deposed before the court that while they were on patrol duty, they found the accused under a suspicious circumstance, intercepted him, searched him and found to be in possession of 22 bottles of Vin grape brandy and one of the bottles was opened, tasted and sample taken. Rest of the bottles were also taken into custody. He had proved M.Os.1, 2 and 3. The analyst's report is marked as Ext.P7. He had been cross examined at length. In the cross examination also he had deposed about the factum of interception, seizure and other aspects correctly. Nothing has been brought out to discredit his evidence. PW2 was one of the police constables, who had accompanied PW1. He had also spoken in the very same line as PW1. He had also said about the seizure, sampling and sealing and also taking into custody the remaining bottles. Nothing has been brought out in the cross examination to discredit his evidence. PW4 is the Sub Inspector of police who had verified and laid the charge. PW3 is the person who had prepared the scene mahazar, which is marked as Ext.P8. So the evidence of Pws.1 and 2 would show the factum of finding CRL.A.No.672 OF 2009 4 the accused with the liquor which he was possessing without any valid permit. It is also clear from the materials available that it was not a foreign liquor which had a seal of Kerala State Beverages Corporation and so the question of possessing excess quantity of liquor and thereby attracting Section 63, does not arise at all. On the contra, he was found in possession of brandy which was intended for sale in the State of Pondicherry, which means that it had been illegally transported and possessed by the accused within the State of Kerala, which is against the mandatory provisions and attract Section 55(a) of Abkari Act squarely. Therefore I do not find any illegality committed by the court below in convicting the accused for the offence u/s.55(a) of Abkari Act. 3. Now turning to the question of sentence. The accused was found in possession of 22 bottles of Indian made foreign liquor. They were only of the capacity of 180 ml. Considering the quantum, as also that he has already been in jail for more than 1 year, I am inclined to show leniency regarding the sentence. I feel justice can be met by directing him to undergo CRL.A.No.672 OF 2009 5 imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh, in default of which to undergo further imprisonment for a period of 3 months. Thus the criminal appeal is disposed of as follows :- 1. The finding of guilt u/s.55(a) of Abkari Act r/w.Rule 9 of Foreign Liquor Rules is confirmed. 2. The sentence is modified and the accused is directed to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh, failing which to undergo further simple imprisonment of 3 months. He is entitled to set off and also to get an adjustment for the period he had already undergone. Send a copy of the judgment to the concerned prison also for necessary action. M.N.KRISHNAN, JUDGE ami.