IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 CRL.A.No. 926 of 2003() ----------------------- ( S.C.NO.43/2002 OF SESSIONS COURT, THRISSUR) APPELLANT/ACCUSED -------------- SUNIL @ SUNIL KUMAR S/O SANKUNNY KALATHIL HOUSE PULLU, THRISSUR BY ADV. SRI.C.HARIKUMAR RESPONDENT/COMPLAINANT --------------- STATE OF KEARLA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KEARLA ERNAKULAM PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.926 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2010 JUDGMENT Challenge in this appeal is to the judgment of Sessions Judge, Thrissur dated June 2, 2003 in Sessions Case No. 43/2002 convicting the appellant/accused under Section 55(a) of Abkari Act and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh, in default to undergo rigorous imprisonment for three months. 2. The case of the prosecution as testified by Pws 1 to 6 before the lower court in brief is this : PW5 is the detecting officer. He was the Excise Inspector of Cherpu Range during that period. PW6 is the then Preventive Officer in that Excise Range who accompanied PW5. On November 23, 1999 at about 2.45 p.m., they were on petrol duty. When they reached in front of the waiting shed of N.R.Gopalan Master near the Alappatt- Kodannur road junction, they found the accused carrying a big shopper. CRA.No.926/2003 2 On inspecting the big shopper - MO6, it was found containing 8 bottles of Indian Made Foreign Liquor ( 6 litres). They arrested him on the spot and seized the contraband articles and took sample from it. They brought the accused to the office and charged the case against him under Section 55(a) and (i) of Abkari Act. PW4, the then Excise Inspector, Thrissur Excise Range investigated the case and laid the charge before the committal court i.e. Judicial First Class Magistrate Court II, Thrissur. 3. When the accused appeared before the Committal Court, copies of documents relied on by the prosecution were furnished to him. As the offence punishable under Section 55(a) and (i) of Abkari Act is exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Thrissur. The accused on appearance before the lower court pleaded not guilty to a charge under Section 55 (a) and (i) of Abkari Act. Pws 1 to 6 were examined and Exts.P1 to P10 were marked on the side of the prosecution. Mos 1 to 6 were also produced by the prosecution. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. DW1 was examined on CRA.No.926/2003 3 the side of the accused. 4. On an appreciation of evidence, the lower court found that the accused has committed the offence punishable under Section 55(a) of Abkari Act, convicted him thereunder and sentenced him as aforesaid. Now the accused has come up in appeal challenging his conviction and sentence. 5. Heard the counsel for the appellant/accused and the Public Prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the appellant under Section 55(a) of Abkari Act can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 7. I shall first consider whether the prosecution has succeeded in proving the search and seizure of contraband articles from the possession of the accused. To prove the above aspect, Pws 1 to 6 were examined on the side of the prosecution. Pws 1 and 2, the independent witnesses turned hostile and did not support the prosecution. Pws 5 CRA.No.926/2003 4 and 6, the Excise Officials testified in terms of the prosecution case. Nothing was brought out during their cross examination to discredit their evidence. Further their evidence is supported by Exts.P1 to P10 and Mos 1 to 6. No serious discrepancies were brought out to discredit their evidence. It was also not suggested during their cross examination that they have any previous enmity towards the accused. Therefore, the lower court is perfectly justified in believing their evidence and holding that search and seizure of contraband articles from the possession of the accused is proved. 8. The next question for consideration is whether the conviction of the appellant under Section 55(a) of the Abkari Act can be sustained. The accused was found in possession of 6 litres of IMFL. The permissible quantity of Indian made Foreign liquor that can be possessed by a person is 1.5 litres as seen from Government Order SRO 127/1999 dated 5-2-1999 which was later increased to 3 litres by notification S.R.O. No.725/2003 dated 2/8/2003. A Division Bench of this court in B.Abdulla v. Station House Officer and another ( 2007 (4)KHC 90) has held that in such cases the accused can be found CRA.No.926/2003 5 guilty of only having been in possession of liquor in excess of the permissible quantity in violation of Section 10 and 13 of Abkari Act which is punishable under Section 63 of the Act. Following the principles laid down in the above decision in the present case also the accused can be found guilty of only violation of Sections 10 and 13 of Abkari Act which is punishable under Section 63 of the Act. Therefore, the conviction of the appellant by the trial court under Section 55(a) cannot be legally sustained and the same is hereby set aside. He is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. 9. As regards the sentence, I have set aside the conviction of the appellant under Section 55(a) of Abkari Act . He is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. The maximum sentence that can be imposed under Section 63 of Abkari Act is imprisonment which may extend to two years and a fine which may extend to Rs. 5,000/-. The incident is of the year 1999. The quantity of liquor seized from the accused is 6 litres of Indian made foreign liquor. No previous conviction is pleaded or proved by the prosecution. CRA.No.926/2003 6 Taking into consideration all these aspects, I feel that a sentence of fine of Rs. 5000/- would meet the ends of justice. In the result, the appeal is allowed in part . The conviction of the appellant by the trial court under Section 55(a) of Abkari Act is set aside. He is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. The sentence imposed by the trial court is set aside and he is sentenced to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for three months. One month time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. CRA.No.926/2003 7