IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.Rev.Pet.No. 2556 of 2008() ------------------------------ AGAINST THE ORDER DATED 26/06/2008 IN SC.945/2006 IN CMP.62/2007 of I ADDL. ASSISTANT SESSIONS COURT, TRIVANDRUM .................... REVN. PETITIONER: ACCUSED ------------------------------------------------- CLEMENT, S/O.POULOSE, PUTHENPURA VEEDU, CHAMMAKKADU DESOM, PERINADU VILLAGE, KOLLAM. BY ADV. SRI.R.ANIL RESPONDENTS: STATE AND COMPLAINANT ----------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE CIRCLE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.2556 of 2008 =================== Dated: 31.07.2008 O R D E R The petitioner, who is the accused in S.C. No. 944 of 2006 on the file of the 1st Additional Sessions Court, Thiruvananthapura for an offence punishable under Section 55(a) of the Kerala Abkari Act challenges the order dated 26.5.08 passed by the trial court dismissing the application (CMP No./62 of 2007) filed by the petitioner seeking his discharge. 2. Presumably the petitioner was relying on the decision Krishnankutty v. State of Kerala ( 2005(3) KLT 568) before the learned Sessions Judge to contend for the position that since samples were not taken from all the 11 bottles of Indian Made Foreign Liquor possessed by him, he was entitled to a discharge. The learned Assistant Sessions Judge, however, dismissed his discharge petition by a cryptic order which reads as follows:- “Heard both sides. Petition dismissed in view of the decision of the Hon'ble High Court in Chandran v. State of Kerala 2008(2) KLT 513. Dismissed.” 3. It is true that Krishnankutty v. State of Kerala (2005 (3) KLT 568) has been explained in Chandran v. State of Kerala. Crl.R.P.No.2556 of 2008 -:2:- (2008(2) KLT 513). But then the petitioner has a contention that all the bottles, though in excess of the permissible limit were purchased from the military canteen as evidenced by the permit seized from the petitioner who is an ex-service man and therefore the offence if at all which is made out is one punishable under Section 63 of the Kerala Abkari Act in view of the the decision in Sabu V. State of Kerala ( 2003(2) KLT 173) as upheld in Mohanan V. State of Kerala ( 2007(1) KLT 845. It shall be open to the petitioner to address the court below during the preliminary hearing under Section 227 Cr.P.C and the court below shall consider whether the appropriate penal provision with which the petitioner could be charged is one punishable under Section 63 of the Kerala Abkari Act. This Revision is disposed of giving the petitioner an opportunity to address the court below as above. Dated this the 31st day of July, 2008 V.Ramkumar, Judge. sj