IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 CRL.A.No. 927 of 2003() ----------------------- SC.386/2002 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT/ACCUSED: ----------------------------- HARIDASAN @ PONNAYYAN, S/O.CHAMI, RESIDIING AT THACHOTH HOUSE, POST PULAKKOD, TALAPPILLY TALUK BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No.927 of 2003 -------------------------- Dated this the 23rd May, 2011 J U D G M E N T This appeal arises from conviction and sentence passed against Section 58 of the Kerala Abkari Act (hereinafter referred to as “Act” for short) to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for three months. 2. According to prosecution, on 13.6.1999 at about 6.30 a.m. while the Excise Officials were on patrol duty they found the accused coming in the opposite direction on a Panchayat road situated in front of the house of one Sivan. He was carrying a plastic can and on suspicion the accused was examined and he was found to be in possession of two litres of arrack. Accused had no explanation for the possession and hence he was arrested from the spot in the presence of independent witnesses. A case was registered and after investigation charge was submitted. Crl.A No.927 of 2003 2 3. PW1 to PW8 were examined. Exts.P1 to P9 and MO1 were marked on the side of the prosecution. Accused did not adduce any evidence to show that he is innocent of the allegations made against him. According to him, while he was returning home after grazing cattle he was taken in a vehicle because of grudge for having refused to sign as a witness. He was on post surgical rest. On an analysis of the evidence, the trial court found that the accused committed offence under Section 58 of the Act since he was found in possession of arrack. 4. Heard both sides. Perused the records. On going through entire records, I find that charge was framed against accused under Section 58 of the Act. A reading of Section 58 of the Act shows that to prove the offence under the said section, it is not sufficient if possession alone is proved by prosecution. Apart from proving possession, a particular knowledge is also to be established under Section 58 of the Act. Knowledge which is referred to in Section 58 is an inevitable factor to be established to convict a person under Section 58 of the Act. Crl.A No.927 of 2003 3 5. However, there is absolutely no evidence on record to show that the accused had requisite knowledge as referred to in Section 58 of the Act. Evidence only discloses (even if it is accepted as a whole) that the accused was carrying arrack. Learned Public Prosecutor pointed out that he was in possession of arrack and hence it is sufficient to convict him under Section 58 of the Act. 6. It is true that possession of arrack is prohibited under Section 8 of the Act. As per Section 8 (1) of the Act no person shall without permit transit possess arrack in any form and as per Section 8 (2) if any person contravenes any provisions of sub-section (1) he shall be punishable. A reading of Section 8 and 58 of the Act shows that there is a vital difference between two provisions and it is in the knowledge as referred to in Section 58. 7. While a particular knowledge is essential to prove offence under Section 58 of the Act, such knowledge is not an ingredient under Section 8 of the Act. When a person is called upon to answer the charge under Section 58 of the Act, unless an allegation is made as to what was the type Crl.A No.927 of 2003 4 knowledge which he had, he cannot be convicted under Section of 58 of the Act. If a person charge-sheeted for offence under Section 58 is convicted under Section 8 of the Act, he can legitimately claim that he is prejudiced. If he has to be convicted under Section 8 of the Act the charge is to be amended and he has to be dealt with again, in accordance with law. 8. The date of offence is on 13.6.1999 and about 12 years have lapsed. The article involved is 2 litres of arrack. He has already undergone punishment. I do not think on the facts of this case, the case has to go back for a re-trial to set right a mistake committed by court in correctly framing charge under Section 58 of the Act instead of Section 8 of the Act. Learned Public Prosecutor submitted that the Excise Officials filed complaint not under Section 58 but the offence referred to was under Section 8 of the Act. 9. In the above circumstances, I find that the conviction under Section 58 of Abkari Act is not legal. The petitioner has already suffered the sentence. Hence Crl.A No.927 of 2003 5 conviction and sentence are unsustainable and those are liable to be set aside. In the result, the following order is passed. (i) The conviction and sentence passed against the appellant under Section 58 of the Abkari Act are set aside. (ii) The appellant is found not guilty of offence under Section 58 of the Abkari Act and he is acquitted of the said offence. (iii) The appellant is set at liberty forthwith. This appeal is allowed. K. HEMA, JUDGE ma Crl.A No.927 of 2003 6 Crl.A No.927 of 2003 7