IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 3062 of 2003 ----------------------------------------------- CRA.594/2001 of III ADDL. SESSIONS COURT (ADHOC-I), THRISSUR ST.194/1997 of JFCM-III, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: RAVI, S/O PANDATH GOVINDAN, MUDIKODE DESOM, PANAMCHERY VILLAGE, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.3062 of 2003 -------------------------- ORDER Petitioner, the accused in S.T.No.194/1997 on the file of Judicial First Class Magistrate's Court-III, Thrissur, was convicted and sentenced to simple imprisonment for three months and a fine of Rs.15,000/- and in default, simple imprisonment for three months for the offence under Section 58 of Abkari Act. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.594/2001. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that there is no case for the prosecution that petitioner has been in possession of the contraband CRRP 3062/03 2 article with the knowledge that it is unlawfully manufactured and in the absence of the said allegation in the complaint, conviction for the offence under Section 58 of Abkari Act is not sustainable. 4. Prosecution case is that on 25.1.1997 while PWs 1 and 4, the Preventive Officers, were on patrol duty, they found petitioner in possession of MO1 can, having a capacity of ten litres, containing six litres of arrack. It was seized on preparing Exhibit P1 mahazar. A sample was prepared and both the sample and MO1 can were sealed and petitioner was arrested and released on bail. 5. Though petitioner pleaded not guilty, learned Magistrate, accepting the evidence of PWs 1 and 4, found that petitioner was possessing MO1 can when he was arrested by PW1 and Exhibit P5 report establishes that the sample, which was collected from MO1 can at the scene of seizure and sent to the Laboratory under Exhibit P4 forwarding note, CRRP 3062/03 3 contained ethyl alcohol and it is illicit arrack. 6. On going through the evidence, I find no reason to interfere with the findings of the courts below that petitioner was found in possession of MO1 can and a sample was prepared at the spot and both the sample and MO1 can were sealed and produced before the court and the sample was sent to the Laboratory and Exhibit P5 report establishes that it is illicit arrack. 7. The only question is what is the offence attracted. Argument of the learned counsel is that when Section 58 of Abkari Act provides that whoever, without lawful authority, has in his possession any quantity of liquor or any intoxicating drug, “knowing the same to be unlawfully imported, transported or manufactured”, shall be punishable with imprisonment for a term which may extend to one year and fine, which shall not be less than fifteen thousand rupees, unless there is an allegation and evidence that petitioner CRRP 3062/03 4 has been in possession of MO1 can containing illicit arrack with the knowledge that it is unlawfully manufactured, conviction will not lie. 8. Learned counsel appearing for the petitioner fairly submitted that the question has been considered by this Court in detail in Crl.R.P.No. 1674/2002. This Court, after considering the entire question, held that when there is no allegation in the complaint and the witness examined on the side of the prosecution has no case that accused was possessing illicit liquor with the knowledge that it contains unlawfully manufactured liquor, an offence under Section 58 of Abkari Act is not attracted. But, as the petitioner is not entitled to possess arrack in view of Section 8(1) of Abkari Act, it is punishable for an offence under Section 63 of Abkari Act. It squarely applies to the facts of this case. Therefore, though conviction of the petitioner for the offence under Section 58 of Abkari Act is not sustainable, he is liable to be CRRP 3062/03 5 convicted and sentenced for the offence under Section 63 of Abkari Act. Revision is allowed in part. Conviction of the petitioner for the offence under Section 58 of Abkari Act is set aside. Petitioner is convicted for the offence under Section 63 of Abkari Act. He is sentenced to the maximum fine of Rs.2,000/- as provided for the offence on the date of commission of the offence. Judicial First Class Magistrate- III, Thrissur is directed to execute the sentence. 29th July, 2010 (M.Sasidharan Nambiar, Judge) tkv