IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 CRL.A.No. 2090 of 2003() ------------------------ S.C.118/01 OF ADDL, DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-I), KOZHIKODE. ........... APPELLANT(S): ACCUSED: ---------------------- BABURAJ, SON OF RAMAN NAIR, KELOTH VEETTIL, PAYIMBRA, KURUVATTOOR, KOZHIKODE. BY ADV. SRI.R.BINDU SASTHAMANGALAM RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. APPEAL 2090 of 2003 ------------------------------------------------------ Dated: DECEMBER 15, 2009 JUDGMENT The challenge in this appeal by the 1st accused in S.C. No.118/2001 is to the judgment of the Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode dated November 27, 2003 convicting him under sec.55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.One lakh, in default to undergo simple imprisonment for nine months. 2. The case of the prosecution as shaped in evidence before the trial court is that on 17.7.1997 at about 1.30 p.m. while PW.1, the Excise Inspector of Vadakara Range along with PW.2, the Excise Guard, were patrolling found an autorickshaw bearing registration No.KL-11-8278 near Mahe - Vadakara NH near Chamboli building, 1st accused was found sitting in the passenger seat of the vehicle driven by the 2nd accused and that on searching the vehicle two cardboard boxes were found on the rear seat and one on the backside of the passenger seat, containing 50 bottles of Indian made foreign liquor of 180 ml. each and 18 bottles of brandy and 35 bottles of whisky containing 375ml. each, totally 29.250 litres and that thereby they committed offences punishable under sec.55(a) of the Abkari Act read Crl.A.2090/2003 2 with Rule 9 of the Foreign Liquor Rules. 3. The accused persons were arrested from the spot and were produced before the Judicial First Class Magistrate Court, Vadakara and subsequently enlarged on bail. After conducting the investigation, PW.7, the then Excise Inspector in charge, laid the charge before the committal court. When the accused persons appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence is punishable under sec.55(a) of the Abkari Act was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Kozhikode from where it was made over to the Assistant Sessions Court, Vadakara. It was then made over to the trial court for trial and disposal. 4. On appearance before the lower court the accused persons pleaded not guilty to the charge under sec.55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. PWs.1 to 8 were examined and Exts.P1 to P9 and M.Os.1 to 4 series were marked on the side of the prosecution. When questioned under sec.313 Cr.P.C. the accused denied the entire incident. No defence evidence was adduced. 5. The lower court on an appreciation of evidence found the appellant/1st accused guilty of the offence punishable under sec. 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, Crl.A.2090/2003 3 convicted him thereunder and sentenced him as aforesaid. The lower court acquitted the 2nd accused. Now the 1st accused has come up in appeal challenging his conviction and sentence. 6. Heard counsel for the appellant and the Public Prosecutor. 7. The following points arise for consideration:- I. Whether the conviction of the appellant under sec.55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 8. PWs.1 to 8 were examined and Exts.P1 to P9 and M.Os.1 to 4 series were marked on the side of the prosecution to prove the offence. PW.1 is the then Excise Inspector of the Vadakara Range who is the detecting officer. PW.2 is the Excise Guard who accompanied P.W.1. They testified in terms of the prosecution case. Nothing was brought out during their cross-examination to disprove their evidence. No serious discrepancies were pointed out in their evidence. Pws.3 and 4, the two independent witnesses, turned hostile and did not support the prosecution. PW.5 is the Village Officer who prepared the sketch of the place of occurrence. PW.6 is the Preventive Officer who registered the case. PW.7 is the Excise Crl.A.2090/2003 4 Inspector who investigated the case and laid the charge sheet. PW.8 is the Excise Inspector who produced the seized properties in court. 9. The case of the accused when questioned under sec.313 Cr.P.C. was that he was falsely implicated in this case and that he has no connection with the articles seized. No evidence is adduced by him to prove the same. Further, the evidence of PWs.1 and 2 clearly shows that he was in possession of the contraband articles found in the autorickshaw. Counsel for the revision petitioner argued that as there is no independent witness to prove the incident, the evidence of PWs.1 and 2 alone cannot be believed. There is no substance in the above contention. It is settled law and is held in Girja Prasad v. State of M.P. {2007 (4) KLT 99 (SC)} that the evidence of official witnesses can be believed if the same is found reliable and trust worthy. On going through the evidence of PWs.1 and 2, I see no reason to doubt their credibility. Therefore accepting the evidence produced on the side of the prosecution, I find that the prosecution has succeeded in proving that the accused was found in possession of the contraband articles as alleged by the prosecution. 10. The next question is whether the charge under sec.55(a) is sustainable. The permissible quantity of Indian made foreign liquor that can be carried by a person is three litres as prescribed in SRO Crl.A.2090/2003 5 No. ................................. A Division Bench of this Court in Mohanan v. State of Kerala {2007(1)KLT 845} has held that sec.55(a) is applicable only when persons illegally imports or transports illegally or in possession of liquor by illegal importing. There is no reliable evidence in this case to show that the contraband article seized is ................ liquor or that they were in possession of illicit liquor. Therefore it is clear from the above that the accused can be found liable only for violation of secs.10 and 13 of the Abkari Act for having been in possession of liquor in excess of the permissible quantity, which is punishable under sec.63 of the Abkari Act. Therefore I set aside the conviction of the revision petitioner under sec.55(a) of the Abkari Act. Point No.II 11. As regards the sentence, the maximum sentence that can be imposed is a fine of Rs.5000/- or imprisonment for a term which may extend to two years. The Public Prosecutor has reported that there is no other case charged against the accused or pending against him. Counsel for the appellant submits that the accused is only a cooly worker. Therefore I think that a sentence of imprisonment till the rising of court and a fine of Rs.5000/- would meet the ends of justice. Crl.A.2090/2003 6 In the result the appeal is allowed in part. The conviction of the appellant under sec.55(a) of the Abkari Act is set aside and he is convicted under sec.63 of the Abkari Act and sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for three months. The appellant shall surrender before the trial court on 8.1.2010. One month time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-