IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 1983 of 2003() --------------------------------- SC.233/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM .................... APPELLANT(S): ACCUSED: ---------------------- THULASEEDHARAN, S/O. GANGADHARAN, ANJALIBHAVANIL VEEDU, PUTHUCHIRA, PERAYAM CHERI, THAZHUTHALA VILLAGE. BY ADVS. MR.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1983 OF 2003 = = = = = = = = = = = = = = = Dated this the 18th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.233/99 of the Addl. District and Sessions Judge, Adhoc-II, Kollam. It is the case of the prosecution that the accused was found guilty u/s 55(a) of the Abkari Act and he was sentenced to undergo four years of rigorous imprisonment and to pay a fine of Rs.1,00,000/-. It is the case of the prosecution that the accused was found possessing arrack and on seizure there were 39 packets of arrack out of which samples were taken from two packets in a 375 ml container which was sealed and thereafter produced before the court and prosecution thus initiated. The Court below after considering the matter exhaustedly found the accused guilty u/s 55(a) of the Abkari Act. 2. The learned counsel for the appellant at the out set itself contended that the offence u/s 55(a) against the accused will not lie for the reason that it is not import, export, transit Crl. Appeal NO. 1983 OF 2003 -:2:- or possession as contemplated u/s 55(a) of the Act. The learned counsel had drawn my attention to the decision of this court reported in Mohanan v. State of kerala 2007 (1) KLT 845. The Division Bench of this court held that S.55(a) deals with only illegal import, export or transport, transit etc. on such import or export. It is made clear that S.55(a) is applicable only if persons illegally imports or transport liquor or in possession of liquor while illegally importing. So unless the possession is proved along with the illegal importing offence u/s 55(a) will not lie. Here there is no case for the prosecution that the possession is coupled with illegal importing. So an action under S.55(a) of the Abkari Act will not lie. Whether any other Section will lie is a matter that has to be looked into and the Court has also found that no offence u/s 55(i) will lie against the accused. There are other provisions such as S.8 and S.58 of the Abkari Act and unless a proper charge is framed on the basis of those sections it may not be possible to arrive at a decision for the reason that the accused has to be given an opportunity to defend those Crl. Appeal NO. 1983 OF 2003 -:3:- particular charges. I am not going elaborately into the evidence of PWs.3 to 6. PW6 is the Investigating Officer. The Court below had attempted to explain the delay that has been caused in producing the illicit liquor before the Court. The alleged arrest was on 14.8.97 and production of the material objects were only on 12.9.97. He had also brought to my notice about the mistake in the property list for the reason there were only two packets whereas three are shown in the property list. It is a matter that requires consideration and the attending circumstances also has to be considered and the Court may have to arrive at a correct conclusion regarding the delay in producing the articles before the Court. It is a criminal trial. If there is possibility of any prejudice that has occurred then certainly the accused will be entitled to the said benefit under the provisions of law. I am not discussing it in detail for the reason that I have to set aside the conviction u/s 55(a) and direct the Court to frame proper charge after hearing the Public Prosecutor as well as the accused and then decide the matter in accordance with law afresh. The Court is Crl. Appeal NO. 1983 OF 2003 -:4:- directed to re-appreciate the evidence which is already available and further permit both the prosecution and the accused to adduce evidence in support of their respective contentions so that the matter can be disposed of after hearing all concerned. Therefore the conviction and sentence passed u/s 55(a) is set aside and the matter is remitted back to the trial Court with a direction to frame proper charge with the materials available on record and then permit both the parties to adduce documentary as well as oral evidence in support of their respective contentions and also re-appreciate the evidence that is available before the Court. Parties are directed to appear before the Court below on 3.8.2009. M.N. KRISHNAN, JUDGE. ul/-