IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Crl.Rev.Pet.No. 1395 of 2003 ---------------------------------------------- CRA.408/2002 of V ADDL.SESSIONS COURT, ERNAKULAM CC.973/1997 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: 1. VISWANATHAN, S/O.SREENIVASAN, OLIPARAMBIL VEEDU, CHIRAKKAKOM KARA, VARAPPUZHA VILLAGE, PARUR TALUK. 2. AJITHKUMAR, S/O.SREENIVASAN, OLIPARAMBIL VEEDU, CHIRAKKAKOM KARA, VARAPPUZHA VILLAGE, PARUR TALUK. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.4/1997 EXCISE RANGE, ERNAKULAM). BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.5958/2003 IN CRRP 1395/2003 DISMISSED 28.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1395 of 2003 -------------------------- ORDER Petitioners, the accused in C.C.No.973/1997 on the file of Additional Chief Judicial Magistrate's Court, Ernakulam, were convicted and sentenced to simple imprisonment for one year each and a fine of Rs.25,000/- each for the offence under Section 55 (a) of Abkari Act. Though petitioners challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.408/2002, learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioners and learned Public prosecutor were heard. 3. Argument of the learned counsel is that as petitioners were found in possession of 2.85 litres of Indian Made Foreign Liquor without any licence, CRRP 1395/03 2 in violation of the Rules, at best, petitioners could be convicted only for the offence under Section 63 of Abkari Act and not for the offence under Section 55(a) of Abkari Act, in the absence of a case that petitioners were found in possession of the liquor in the course of import or export. It was argued that petitioners cannot be convicted for the offence under Section 55(a) of Abkari Act, in the light of Division Bench decisions of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845) and the learned single Judge in Sabu v. State of Kerala (2003 (2) KLT 173), which was approved in Mohanan's case (supra). 4. Prosecution case is that on 7.2.1997 at about 2.20 p.m., petitioners were found in possession of 2.85 litres of Indian Made Foreign Liquor without any licence and they, thereby, committed offence under Section 55(a) of Abkari Act. As held by this Court in Surendran's case CRRP 1395/03 3 (supra), to attract an offence under Section 55(a) of Abkari Act, possession must either be in the course of illegal import, export, transport or transit and possession of Indian Made Foreign Liquor in excess of the permissible limit will not attract an offence under Section 55(a) of Abkari Act. In Sabu's case (supra), this Court considered a similar case where, on possession of liquor in excess of the quantity permissible under law, an offence under Section 55(a) of Abkari Act was alleged to have been committed and if the accused is found in possession of only excess quantity of liquor permissible under law, it would attract only an offence under Section 63 of Abkari Act. Subsequently, Division Bench of this Court in Mohanan's case (supra), considered the entire aspect in the light of the earlier decided cases and held that as declared in Surendran's case (supra), to attract an offence under Section 55(a) of Abkari Act, there should be illegal import, CRRP 1395/03 4 export or transport of liquor or possession of liquor illegally imported or exported and possession of liquor in excess of the permissible limit will not attract an offence under Section 55 (a) of Abkari Act. In the light of the decisions in Surendran's case (supra) and Mohanan's case (supra), conviction of the petitioners for the offence under Section 55(a) of Abkari Act is not sustainable. As prosecution has succeeded in establishing that petitioners were found in possession of 20.85 litres of Indian Made Foreign Liquor, in excess of the permissible limit and no separate Section is provided for its punishment, petitioners could be convicted only as provided under Section 63 of Abkari Act. 5. Then the only question is regarding the sentence. The seizure in this case was on 7.2.1997. As per Section 63 of Abkari Act, as it then stood, the sentence provided is fine which may extend to Rs.2,000/-. Section 63 was amended by Act 16 of CRRP 1395/03 5 1997, which came into effect on 3.6.1997, providing a sentence of fine which may extend to Rs.2,000/- or imprisonment for a term which may extend to two years or both. As the offence was committed prior to 3.6.1997, petitioners can be sentenced only to the maximum fine of Rs.2,000/- each. Revision is allowed in part. Conviction of the petitioners for the offence under Section 55(a) of Abkari Act in C.C.No.973/1997, as confirmed in Crl.A.No.408/2002, is set aside. Petitioners are found guilty of the offence under Section 63 of Abkari Act. They are sentenced to pay a fine of Rs.2,000/- each and in default, simple imprisonment for one month each. Additional Chief Judicial Magistrate is directed to execute the sentence. 28th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1395/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1395 of 2003 -------------------------- ORDER 28th June, 2010