IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.Rev.Pet.No. 1403 of 2001() ------------------------------ CRA.127/2000 of ADDL.SESSIONS COURT, KOZHIKODE CC.575/1996 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- BABU @ THARAMMAL PRADEEPAN AGED 25 YEARS, S/O GOPALAN ANCHARKANDI HOUSE, IRIGGAL AMSOM DESOM, KOYILANDY TALUK BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S):RESPONDENTS/COMPLAINANT --------------- 1. THE EXCISE INSPECTOR VADAKARA EXCISE RANGE 2. THE STATE OF KERALA, REP. BY PUBLC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1403 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.575/1996 of Judicial First Class Magistrate I, Vadakara and appellant in Crl.Appeal No.127/2000 of Sessions Court, Kozhikode. He was convicted under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 25,000/-, in default, to under simple imprisonment for six months by the trial court which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on February 24, 1996 at about 1.40 p.m. the accused was found to be transporting 20 bottles of Indian made Foreign liquor containing 180 ML each in a bus bearing No.KL-13/6723 near Madappilli college junction, Vadakara and that thereby committed the offence punishable under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. The accused on appearance before the trial Crl.R.P.No.1403/01 Page numbers court pleaded not guilty to a charge under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. PWs 1 to 5 were examined and Exts.P1 to P3 were marked and MO1 series MO2 were produced on the side of prosecution . When questioned under Section 313 Cr.P.C by the trial court, the accused denied the entire incident. DW1 was examined and Ext.D1 was marked on his side. 3. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules , convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 4. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is Crl.R.P.No.1403/01 Page numbers excessive or unduly harsh ? Point No.1 5. PWs 1 to 5 were examined and Exts.P1 to P5 were marked on the side of prosecution. PW1 is the preventive officer attached to the Excise Range Office, Vadakara. He testified in terms of the prosecution. I have gone through his evidence. Nothing was brought out during his cross examination to discredit his evidence. His evidence is supported on all material particulars by PW5, another Preventive officer who was along with PW1 at the time of detection of the offence .The evidence of PW1 and PW5 were not shaken in cross examination. It was not even suggested during their cross examination that they have any enmity towards the accused to foist a false case against him. In my view, the trial court as well as the lower appellate court is perfectly justified in believing their evidence. 6. PW2 is the driver of the bus in which accused was travelling. He turned hostile and did not support the prosecution. PW3 is the conductor of the said bus who also turned hostile. PW4 is the Excise Inspector, Vadakara Excise Range who laid the charge against the accused. He proved Ext.P4 chemical analysis report. An attempt Crl.R.P.No.1403/01 Page numbers was made on the side of the accused by examining DW1 who was another passenger of the bus to show that he was going along with the accused to purchase some articles from Mahe and that he got down at Kannookkara asking the accused that he will wait there on the bus stop and that meanwhile Excise officials arrested the accused. But the trial court as well as the lower appellate court has chosen to disbelieve his evidence. On going through his evidence, I also feel that he was testifying just to help the accused. Therefore, in my view both the courts below is right in rejecting his evidence. 7. For all these reasons, I am of the view that the trial court as well as the lower appellate court was justified in accepting the evidence of PWs 1 and 5 and coming to the conclusion that accused was found to be in possession of 20 litres of Indian made Foreign liquor in the bus bearing Reg. No. KL-13/6723 as alleged by the prosecution. 8. The next question is whether the charge under Section 55 (a) of Abkari Act will lie against the accused. The accused was found to be in possession of 20 bottles of 180 ML each of Indian made foreign liquor i.e. 3.6 litres. At that time, the permissible quantity of Indian made liquor one can possess was 1.5 litres as revealed from Crl.R.P.No.1403/01 Page numbers government notification SRO 89/1969 dated 09/02/1969. Under such a circumstance, a single Bench of this court in B.Abdulla v. Station House Officer and another ( 2007(4) KHC 90) has held that one can be found guilty of only violation of Sections 10 and 13of Abkari Act for having been in possession of Indian made foreign liquor in excess of the permissible quantity which is punishable under Section 63 of the Abkari Act. Therefore, I am inclined to hold that finding of trial court which is confirmed in appeal that accused has committed an offence punishable under Section 55(a) of Abkari Act is not legally sustainable; instead he is found guilty under Section 63 of the Act for violating the provisions of Sections 10 and 13 of the Act and is convicted thereunder. Point No.2 9. As regards the sentence, the trial court sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 25,000/-, in default, to under simple imprisonment for six months under Section 55(a) of Abkari Act which is confirmed in appeal. The incident occurred on 24-02-1996. Further I have set aside the conviction of both the courts below under Section 55(a) of Abkari Act Crl.R.P.No.1403/01 Page numbers and convicted him under Sections 10 and 13 read with Section 63 of the Abkari Act. The maximum sentence prescribed under Section 63 of the Abkari Act before amendment was a fine of Rs.2,000/-. Therefore, I feel that a sentence to pay a fine of Rs. 2,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of revision petitioner under Section 55(a) of Abkari Act is set aside. He is convicted under Sections 10 and 11 read with Section 63 of the Abkari Act. He is sentenced to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for three months. If the accused has deposited any fine amount before the trial court, it shall be adjusted towards the fine imposed. Otherwise, he shall deposit fine amount within one month from this date. His bail bonds are cancelled. P.Q.BARKATH ALI sv. JUDGE Crl.R.P.No.1403/01 Page numbers