IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 807 of 2003() ---------------------------------- SC.377/2002 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED: ---------------------- MANIKANDAN, S/O. SANKARANARAYANAN, THANDANKAVIL HOUSE, ELANADU VILLAGE, THIRUMANI DESOM, THALAPPILLY TALUK. BY ADV. MR.P.K.ANIL RESPONDENT(S): COMPLAINANT/STATE: --------------------------- 1. THE EXCISE INSPECTOR, PAZHAYANNUR. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MA. NO.5121/2003 IN CRA. NO.807/2003 DISMISSED 26/06/2009` SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 807 OF 2003 = = = = = = = = = = = = = = = Dated this the 26th 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.337/02 of the Addl. District and Sessions Judge, Adhoc-I, Fast Track Court, Thrissur. The accused was found guilty u/s 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months for offence u/s 58 of the Abkari Act. It is against that conviction the appeal is preferred. 2. The points that arise for determination are; (1) Whether the accused is guilty of the offence u/s 58 of the Abkari Act? (2) If not, whether it will come under any other provision? (3) What is the proper punishment in case of guilt? Crl. Appeal NO. 807 OF 2003 -:2:- Points: 3. It is the case of the prosecution that on 3.10.99 at 4.p.m. the accused was found in possession of 8 bottles of 750 ml. of Indian Made Foreign Liquor and thereby according to the officials has committed the offence u/s 55(a) of the Abkari Act. The Court had framed charge only u/s 58 of the Abkari Act. 4. Whether the appellant was in possession of the liquor can be considered first. The detecting officer was examined as PW4. He had deposed before Court that he saw the accused holding a green bag and was standing at the scene of occurrence. There was perplexity on the face of the appellant on seeing the officials and therefore search was conducted and the bag contained a cardboard box with 8 bottles of 750 ml. each SALSA XXX RUM. One of the bottles was opened, tasted and a sample of 180 ml was taken from the same. Thereafter it had been sent for chemical analysis and the percentage of ethyl alcohol is reported by the chemical examiner. PW3 is an excise inspector who had conducted investigation and PW5 is the Excise Inspector who had submitted a charge. So from the evidence of PWs.3, 4 and 5 it Crl. Appeal NO. 807 OF 2003 -:3:- can be seen that the accused was found to be in possession of XXX rum by brand name Salsa. It is also clearly noted therein that it had the seal of Kerala State Beverages Corporation. The learned Sessions Judge also had held that all the bottles were alike and it contained the seal of Kerala State Beverages Corporation. Therefore it has to be stated that the accused was found in possession of 8 bottles of Indian Made Foreign Liquor at the relevant time. 5. Now the next question is what is the offence. Under the Foreign Liquor Rules a person is permitted to possess foreign liquor up to a limit of 4½ liters at the relevant point of time. He was found to be in possession of six liters which is an excess quantity. Or in other words his excessive possession was against the provisions. 6. So far as the quantum is concerned, S.58 of the Abkari Act will not be attracted in this case for the reason that he was not in possession of any quantity of liquor which is unlawfully imported, exported or manufactured. So the finding of the Court below that he is guilty u/s 58 of the Act cannot be sustained. He has to be acquitted for the said offence. From the materials available it is seen that he is in Crl. Appeal NO. 807 OF 2003 -:4:- possession of excess quantity of Indian Made Foreign Liquor. Though it contained the seal of Beverages Corporation, it is in contravention of the rules. When there is such a contravention that offence is attracted u/s 63 of the Abkari Act. Therefore I find the accused guilty of the offences u/s 63 of the Abkari Act and I feel it is sufficient if he is sentenced to pay a fine of Rs.4,000/- in this case. Therefore the appeal is partly allowed and disposed of as follows. (1) The finding of guilt u/s 58 of the Abkari Act is set aside and he is found not guilty of that charge and acquitted thereunder. (2) He is found guilty u/s 63 of the Abkari Act and he is sentenced to pay a fine of Rs.4,000/- and in default to undergo simple imprisonment for a period of one month. (3) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 807 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 807 OF 2003 = = = = = = = = = = = J U D G M E N T 26th June, 2009