IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 CRL.A.No. 862 of 2003() ----------------------- SC.214/1998 OF ADDL. SESSIONS COURT (ADHOC)-1, THALASSERY .................... APPELLANT/ACCUSED: --------------------------------- THATTANKANDY ISMAIL, AGED 52 YEARS, S/O. MAMMAD, T.K. HOUSE, KOLARI AMSOM, ELANNUR. BY ADV. SRI.P.SURESH SRI.C.A.CHACKO RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. REJI JOSEPH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 862 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF NOVEMBER, 2011. J U D G M E N T The appellant was convicted by the Additional Sessions Judge, Adhoc-1, Thalassery, in S.C. 214/1998 for offence under Section 55(a) of the Abkari Act and sentenced to simple imprisonment for six months and a fine of Rs. 1,00,000/- with a default sentence of simple imprisonment for one year. Assailing the conviction and sentence, this appeal was preferred. PW.1, the Circle Inspector of Police, Mattannur, is the detecting officer. According to PW.1, while he was moving on patrol duty at 7.30 p.m. on 12.9.1997 the appellant was found in possession of one bottle of 375 ml. of Royal Gold Cup whisky and six bottles of 150 ml., each containing King George brandy. The appellant was apprehended and the contraband liquid was seized after preparing Ext.P2 seizure mahazar. After returning to the police station, a case as Crime No. 227 of 1997 was registered for which Ext.P1 F.I.R. was prepared. Sample taken from 150 ml. bottles were forwarded for chemical examination along with Ext.P3 forwarding note. Ext.P4 is the report of the Chemical Examiner wherein it is reported that the sample contained ethyl alcohol. PW.2, an independent CRL. A. 862/2003 2 witness has turned hostile. PW.3 is the investigating officer and PW.4 is the charge officer. Though it is mentioned in the evidence of PW.1 that the bottle contained no seal or label of the Beverages Corporation, there is no whisper in the evidence of PW.1 that the liquor was illicitly manufactured by the appellant or that the appellant was involved in sale of liquor. The total quantity is only 1.455 litres. Admittedly, it is within the limit of the quantity of liquor which one can possess. So long as there is no case that the liquor was illicitly manufactured by the appellant or that it was carried for sale and the quantity being permissible, I find that the conviction and sentence under challenge are not sustainable. In the result, the conviction and sentence under challenge are set aside and the appellant is acquitted. The fine amount, if any, collected shall be refunded. P.S. GOPINATHAN, (JUDGE) knc/- CRL. A. 862/2003 3 P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 862 OF 2003 = = = = = = = = = = = = = J U D G M E N T DATED: 14TH NOVEMBER, 2011.