IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 4643 of 2007() ------------------------------ (SC 517 OF 2005 OF ADDITIONAL SESSIONS JUDGE, KATTAPPANA) REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. REGI MARKOSE, S/O THOMAS KARKOSE, PANTHANALIL HOUSE, CUMBUNMETTUKARA, KARUNAPURAM VILLAGE. 2. THOMAS MARKOSE, S/O THOMAS, PANTHANALIL HOUSE, CUMBUNMETTUKARA, KARUNAPURAM VILLAGE. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, VENDENMEDU. PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 4643 OF 2007 ............................................ DATED THIS THE 22nd DAY OF OCTOBER, 2008 ORDER Petitioners are the accused in S.C.517 of 2005 on the file of Assistant Sessions Court, Kattappana. Second petitioner is the father and first petitioner, his son. Prosecution case was that on 16.2.2004, at about 8 pm, while PW8, S.I under the directions of PW7, the C.I was searching the vehicle passing through Amayar junction in Vandanmedu Village, Jipsi Van KL 7-Y 549 driven by first petitioner, with second petitioner as passenger, came through that way. PW8 stopped the vehicle and searched it. They found 50 litres of diesel, 30 litres of petrol in plastic cans and two hard board boxes containing 24 bottles , each containing 375 ml and 45 bottles, each containing 180 ml of Victoria Fine Brand Indian made foreign liquor in sealed bottles made by Kerala State Bewerages Corporation. After preparing Ext.P1 seizure mahazar, petitioners were arrested and samples were prepared. After investigation, charge was laid before Judicial First Class Magistrate, Nedumkandam who committed the case to Sessions Court, which was made over to Assistant Sessions Court, Kattappana. Petitioners were released on bail. When CRRP 4643/2007 2 charge for the offences under Section 55(a) of Abkari Act and Section 6 of Kerala Motor Spirit and High Speed Oil (Maintenance and Regulation Act on Supplies) Order 1979 read with Section 3 and 7(1)(a)(ii) of Essential Commodities Act 1955 was framed. They pleaded not guilty. 2. Prosecution examined nine witnesses and marked Ext.P1 to P9 and identified MO1 to 6. Petitioners, though called upon, did not adduce any defence evidence. Learned Assistant Sessions Judge, on the evidence, found the petitioners guilty of the offence under Section 55(a) and acquitted of the offence under Essential Commodities Act. First petitioner was sentenced to simple imprisonment for five years and a fine of Rs.1,00,000/- and in default, simple imprisonment for one year . Second petitioner was sentenced to simple imprisonment for two years and a fine of Rs.1,00,000/- and in default, simple imprisonment for one year. Petitioners challenged the conviction and sentence before Sessions Court, Thodupuzha in Crl.A.246 of 2007. Learned Additional Sessions Judge, on reappreciation of evidence confirmed the conviction but reduced the sentence to simple imprisonment for three months each and confirmed the fine and the default sentence. Revision petition is filed CRRP 4643/2007 3 challenging the conviction and sentence. 3. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 4. Learned counsel appearing for petitioners argued that the case against petitioners was only that they were found in possession of the 24 bottles having a capacity of 375 ml each and 48 bottles having a capacity of 180 ml each of Victorial Fine Brandy of Indian made foreign liquor made by Kerala State Beverages Corporation and they were not illegally importing or transporting any liquor as provided under Section 55(a) of Kerala Abkari Act and in any case they could only be convicted only for the offence under Section 63 of Kerala Abkari Act. Reliance was placed on the decision of a learned Single Judge of this court in Sabu V. State of Kerala (2003(2) KLT 173) and the Division Bench decision in Mohanan V State of Kerala (2007(1) KLT 845). It is argued that the conviction and sentence is not sustainable. 5. Learned Assistant Sessions Judge and learned Sessions Judge on appreciation of evidence, found that on 16.2.2004, at about 8 pm, as instructed by PW7, C.I of Police, PW8 was searching the vehicles at Amayar junction. While so, Maruti Jipsi CRRP 4643/2007 4 Van KL 7 Y 549 driven by first petitioner with second petitioner, the father as a passenger, came through that way. PW8 stopped the vehicle and found that apart from the cans containing diesel and petrol, there were two hard board boxes containing 24 bottles each containing 375 ml and 45 bottles, each containing 180 ml of Victoria Fine Brand Indian made foreign liquor in sealed bottles made by Kerala State Bewerages Corporation. Though learned counsel challenged the acceptance of the evidence, I do not find any reason to interfere with the factual finding of courts below that first petitioner was driving the Maruti Jipsi Van and second petitioner was inside the van and there were two hard board boxes containing MO3 and MO4 series of brandy bottles. Therefore possession of the said bottles with the petitioners is conclusively proved. The question is what is the offence committed. 6. Admittedly, petitioners were possessing the said bottles of Indian made foreign liquor, in excess of the permissible limit which could be possessed by petitioners. The question is whether the offence attracted is Section 55(a) as found by courts below or Section 63 of Abkari Act as canvassed by learned counsel. 7. An identical case was considered by a learned Single CRRP 4643/2007 5 Judge in Sabu's case (supra). It was a case where the accused was found transporting 13.9 litres of Indian made foreign liquor in an autorickshaw. As in this case foreign liquor was also made by Kerala State Bewerages Corporation. The defence was that the accused was transporting the foreign liquor for the purpose of conducting a birthday party at his house. The case against that accused was that he committed the offence under Section 55(a) of Kerala Abkari Act. Learned Single Judge, analysing the provisions of Section 55(a), held that Section 55(a) is not attracted in such a case. Learned Judge held:- “ What is the offence here? Accused purchased liquor from Government owned Kerala State Bewerages Corporation. They were having bills. There was a ceremony in the house. It was intended for that purpose. It was not for resale. Is this an offence equated with manufacture or sale or possession of illicit or illegal liquor. If the interpretation in such a way, if a CRRP 4643/2007 6 person purchases two bottles of liquor (of 1 litre bottle) from the Kerala State Bewerages Corporation with bills and transports to his house for a birthday party, he has to pay a minimum fine of Rs.One lakh and sentence upto ten years imprisonment. That will lead to absurd result which will encourage corruption by law enforcing agencies. If such an interpretation is accepted, officers of the Kerala State Bewerage Corporation also will be guilty and punishable for such fine of minimum of Rs.One lakh as they have sold excess quantity(1.5 litre) to a single person by a single bill in view of S.55(1). If interpretation as suggested by the Public Prosecutor is accepted, if a CRRP 4643/2007 7 foreign tourist who stays in a hotel where there is no bar keeps three bottles of beer for his own consumption, will be liable to pay fine of minimum of Rs. One lakh. Therefore, considering the objects, heading of the section and principle of interpretation of penal law, a reasonable interpretation has to be taken. Sentence of imprisonment upto ten years or minimum fine of Rs. One lakh itself suggest that the section is not intended to trival offence like this. Monstrous sentence, the rigour of criminal provisions in the Statute itself drive the court to take an equitable and fair interpretation. (see the observations in Sanjay Dutt. V. State through CBI Bombay(JT 1994 (5) SC 540 at page 557 to 561)”. CRRP 4643/2007 8 8. The Division Bench in Mohanan's case (supra) again considered this aspect. It was held that in such a case, only an offence under Section 63 of Abkari Act is attracted and not 55(a) of the Abkari Act. In view of the decision of this court, even though petitioners were found in possession of Indian made foreign liquor of Kerala State Bewerages Corporation, in excess of the permissible limit the offences committed cannot be under Section 55(a) of Abkari Act but only Section 63 of Kerala Abkari Act. Therefore conviction of petitioners for the offence under Section 55(a) is not legal. They could only be convicted for the offence under Section 63 of Abkari Act. 9. Then the question is what is the sentence to be awarded. Section 63 provides for a sentence of fine, which may extent to Rs.5000/- or imprisonment for a term which may extent to two years or both. On the facts and circumstances of the case, interest of justice will be met if the petitioners are sentenced to the maximum fine provided under Section 63 of Abkari Act. 10. Revision is allowed in part. Conviction of petitioners for the offence under Section 55(a) of Abkari Act is set aside. They are convicted for the offence under Section 63 of Abkari Act. They are sentenced to a fine of Rs.5000/- each and in default, CRRP 4643/2007 9 simple imprisonment for three months. M.SASIDHARAN NAMBIAR, JUDGE lgk/-