IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1674 of 2002() ------------------------------ CRA.113/2000 of ADDL. SESSIONS COURT FAST TRACK (ADHOC-I), KOZHIKODE CC.387/1997 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- KALLIANI, W/O. APPUTTY, VALACHUKATTIYIL, PADINHATTUMMURI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.8998/02 IN CRRP 1674/02 DISMISSED 18.6.10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1674 OF 2002 --------------------------------------------- Dated 18th June, 2010 O R D E R Can an accused found in possession of three litres of illicit arrack be convicted for the offence under Section 55 (a) of Abkari Act when there is no case that possession was in the process of export or import or transport or on transit of the liquor imported or exported? 2. The petitioner was convicted for the offence under Section 55(a) of the Abkari Act (hereinafter referred to as 'the Act') by Judicial First Class Magistrate, Kunnamangalam in C.C. No.387 of 1997. It was confirmed by Sessions Court Kozhikode in Crl.Appeal No.113 of 2000. Prosecution case is that on 19.5.1997 at about 4.30 pm CRRP 1674/02 2 PW2 the Assistant Excise Inspector, Chalavoor range while on patrol duty along with PW1 the Excise Guard reached the road from Chalilthazham to Parambil Bazar, found petitioner coming with MO1 plastic can. On examining the can PW2 found that it contained illicit arrack. PW2 confirmed it by its smell and taste. She was arrested and the sample in a 180 bottle was taken. The sample and the remaining liquor in MO1 Can were separately sealed. Ex.P1 mahazar was prepared. The sample was produced before the court and sent for chemical analysis. Ext.P4 report of chemical analysis shows that it contains ethyl alcohol of 28.6% by volume. When charge for the offence under Section 55(a) of the Act was framed, petitioner pleaded not guilty. The prosecution examined PWs 1 to 5 and marked CRRP 1674/02 3 Exts.P1 to P4 and identified MO1 Can. The learned Magistrate on the evidence of PW2 corroborated PW1, the Excise Guard, found that on 19/5/1997 petitioner was in possession of MO1 Can containing illicit liquor on 19.5.1997. She was convicted and sentenced for the offence under Section 55(a) of the Act. The learned Single Judge confirmed the findings in the appeal. Revision is filed challenging the conviction and sentence. 3. The learned counsel appearing for the petitioner relying on the Division Bench decision of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404), and Mohanan v. State of Kerala (2007 (1) KLT 845) argued that the conviction of the petitioner for the offence under Section 55(a) of the Act is illegal as the prosecution has no case that CRRP 1674/02 4 possession of the illicit liquor by the petitioner was either in the course of export or import. The learned counsel also argued that in the absence of the essential ingredients of an offence under Section 55(a) of the Act, the petitioner cannot be convicted even for an offence under Section 58 of the Act and if at all the conviction could only be under Section 63 of the Act. 4. Learned Public Prosecutor submitted that courts below convicted the petitioner on proper appreciation of the evidence and there is no reason to interfere. 5. The prosecution has no case that possession of MO1 Can, found with the petitioner on 19.5.1997, was either in the process of export or import. The question is if so, whether an offence under Section 55(a) CRRP 1674/02 5 of the Act is attracted. A learned Single Judge of this Court in Kunhiraman v. Registrar of Co-op. Societies (1995 (1) KLT 736) holding that each word transport, transit or possess in Clause (a) of Section 55 is to be treated independent and therefore, independent possession of an illicit liquor would attract an offence under Section 55(a). Different view was taken by two other Single Judges in Rajeevan v. Excise Inspector (1995 (1) KLT 38) and Purushan v. State of Kerala (2002 (2) KLT 661). In view of the divergent views, the question was referred to the Division Bench. The Division Bench in Surendran's case (Supra) upheld the view expressed in Rajeevan's case and Purushan's case (supra) and held in view of the decision in Kunhiraman's case is not good and when a person is in possession of liquor CRRP 1674/02 6 while legally importing it to the State would be covered under Section 55(a) of the Act and in a case where possession is of illicit liquor, the case would fall only under Section 58 of the Act. Later, another Division Bench in Mohanan v. State of Kerala (2007 (1) KLT 845) again considered theses divergent views and followed the earlier Division Bench decision in Surendran's case. It was held that Section 55 of the Act is applicable only when person illegally imports or transports liquor or is in possession of liquor while illegally importing and Section 55(a) will not be attracted merely because a person sells liquor on a prohibited day or possess liquor in excess of the quantity permitted under the rules. In the light of the Division Bench decision in Surendran's case and Mohanan's case, in order CRRP 1674/02 7 to convict the petitioner for the offence under Section 55(a) of the Act, possession of the liquor must be in the process of export or import. When prosecution has no such case, conviction of the petitioner for the offence under Section 55(a) is illegal. 6. Then the question is what is the offence committed. The evidence establishes that petitioner was in possession of three litres of illicit arrack. Section 58 of the Abkari Act provides punishment for possession of illicit liquor. Under Section 58 who ever without lawful authority has in his possession any quantity of liquor or any intoxicating drug knowing the same to have been unlawfully imported, transported or manufactured or knowing the duty tax or rental payable not have been paid thereof, shall be publishable as CRRP 1674/02 8 provided therein. Therefore, to attract an offence under Section 58 of the Act, the accused must be in possession of any quantity of liquor or any intoxicating drug without lawful authority, knowing the same to have been unlawfully imported, transported or manufactured or knowing that the tax duty or rental payable under the Act has not been paid. As is clear from the Section, mere possession of any quantity of liquor or intoxicating drug by itself is not sufficient to convict a person for the offence under Section 58. The possession must be first without lawful authority and secondly with the knowledge that it has been either unlawfully imported or unlawfully transported or unlawfully manufactured. Possession of an unlawfully manufactured liquor like the illicit arrack, is CRRP 1674/02 9 made punishable under Section 58 of the Act, if that possession is with the knowledge that it is unlawfully manufactured. Therefore, the essential ingredients of the offence are (1) possession of illicit liquor (2) with the knowledge that it is unlawfully manufactured. 7. The charge against the petitioner was under Section 55(a). Ingredients of an offence under Section 55(a) was import, export, transport, transit or possess liquor or any intoxicating drug, in contravention of the Act or any rule or order made under the Act. The allegation as against the petitioner is limited to possession of illicit liquor in contravention of the Act or rule or order made under the Act. That possession contemplated under Section 55, though must be in the course of import or export, possession need not be CRRP 1674/02 10 with the knowledge, as is the case with Section 58. Consequently, in the charge framed against the petitioner, there is no allegation that petitioner has been in possession of the liquor with the knowledge that it was illegally manufactured. Question is whether in the absence of a positive allegation that petitioner was possessing illicit liquor knowing that it was unlawfully manufactured, an offence under Section 58 is attracted. Though Section 64 of the Act provides for the presumption to be drawn, before Section 58 along with Sections 55B, 56A, 57, 58A and 58 B were inserted, by the Act 16 of 1997 w.e.f.3/6/1997, presumption cannot be drawn in respect of the offence under Section 58, by re- course to Section 64 of the Act. Therefore, fact that an accused has been in possession of CRRP 1674/02 11 the illicit liquor by itself is not sufficient. Possession must be knowing that it has been unlawfully manufactured. That fact is to be established by the prosecution. If there is no allegation in the charge and no evidence was adduced with respect to the factum of possession “with the knowledge that it has been unlawfully manufactured”, Section 58 cannot be attracted. Division Bench in Surendran's case (supra) considered this aspect, in paragraph 12 and held. “Learned counsel appearing for the petitioner has specifically stated before us that there was not even a suggestion that petitioner was aware of the fact that it had been illegally imported or manufactured or that duty etc. has not been paid. Thus it appears that even the CRRP 1674/02 12 ingredients of Section 58 are not satisfied.” When Section 58 mandates that to attract the offence, the person has to be in his possession of any quantity of liquor or any intoxicating drug “knowing the same have been unlawfully imported, transported or manufactured”. In the absence of a specific allegation in the complaint/final report, that petitioner has been in possession of liquor, knowing that it was unlawfully manufactured, she cannot be convicted for the offence under Section 58 of the Abkari Act. That exactly is the case herein. Except stating that in contravention of the Act petitioner was found in possession of illicit arrack, there is no allegation in the charge that petitioner has been in possession of liquor, with the knowledge that it was CRRP 1674/02 13 unlawfully manufactured. Allegation that is is illicit liquor by itself will not attract an offence under Section 58, in the absence of a case that petitioner was aware that it is unlawfully manufactured. There may be a case where 'A' entrust a can to 'B' and it was seized from the possession of 'B'. 'B' may not be aware the contents of the can. 'B' is unaware of the fact that the can contains unlawfully manufactured liquor. Can 'B' be prosecuted for the offence under Section 58, in the absence of an allegation that 'B' has been in possession of the can containing unlawfully manufactured liquor, with the knowledge that it contained unlawfully manufactured liquor. If presumption under Section 64 could be drawn, definitely 'B' could be prosecuted. But in a case where Section 64 has no application, as in CRRP 1674/02 14 this case as Section 64 then stood in the absence of a specific case that 'B' has been in possession of the can containing liquor with the knowledge that it is unlawfully manufactured, he cannot be prosecuted for the offence under Section 58. That exactly is the case herein. Prosecution cannot depend on the defence to be taken by the accused and based on the weakness of the defence case, an accused cannot be convicted for the offence. It is upto the prosecution to allege that petitioner has been in possession of MO.1 can containing illicit arrack, with the knowledge that it was unlawfully manufactured. When there is no allegation in the complaint and neither PW1 nor PW2 had given evidence that petitioner has been in possession of MO.1 can with the knowledge that it contained unlawfully manufactured CRRP 1674/02 15 liquor, she cannot be convicted for the offence under Section 58 of Abkari Act. 8. But still petitioner is liable to be convicted as provided under Section 63 of the Act. Section 63 provides that whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act and not otherwise provided for in the Act shall, on conviction be punished for each such willful Act or omission with fine which at the time was of commission of the offence may extend to rupees two thousand. By Act 4 of 1996 which came into force on 27/3/1996, after clause 6 of Section 3, clause 6A was inserted defining arrack. Section 8 was also inserted providing prohibition of manufacture, import, export, transport, transit possession, storage CRRP 1674/02 16 and sale of arrack. Under Section 8, no person shall manufacture or import, export, transport, transit, possess storage, distribute, bottle or sell arrack in any form. Therefore, by virtue of Section 8 there is a prohibition for possessing arrack in any form came into force w.e.f.27/3/1996. It was only by amendment Act 16 of 1997, which came into effect on 3/6/1997 Sub Section 2 of Section 8 was inserted after renumbering original Section 8 as Sub Section 1 of Section 8 providing punishment for contravention of Sub Section 1 of Section 8. Therefore, before 3/6/1997, no specific punishment was provided for contravention of the provisions of Section 8 as it then stood. Possession of illicit arrack was on 19/5/1997. In such circumstances, petitioner could only be convicted and sentenced as provided under CRRP 1674/02 17 Section 63 of the Abkari Act. Revision is allowed in part. Conviction and sentence for the offence under Section for the offence under Section 55(a) of Abkari Act is set aside. Petitioner is convicted for the offence under Section 63 of Abkari Act and sentenced to a fine of Rs.2,000/- and in default simple imprisonment for one month. Judicial First Class Magistrate, Kunnamangalam is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. Vps/uj.