IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 1744 of 2008() ------------------------------- SC.502/2007 of ADDL. SESSIONS COURT (ADHOC-2) ERNAKULAM CRIME NO.25/2004 OF EXCISE RANGE, ERNAKULAM .................... PETITIONER(S): ACCUSED ------------------------------- SEBASTIAN @ BASTIN, S/O.JOSEPH ABRAHAM, KATTUNILATHU VEEDU, POTTAKUZHY EDAPALLY SOUTH, ERNAKULAM. BY ADVS. SRI.SOORAJ T.ELENJICKAL SRI.M.A.JOSEPH MANAVALAN RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA THROUGH EXCISE INSPECTOR EXCISE RANGE OFFICE, ERNAKULAM REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.L.G.SURESH BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs. N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.1744 of 2008 ---------------------------------------------------- Dated this the 6th day of April, 2011 Order The petitioner is the accused in S.C.No.502 of 2007 on the file of the Additional Sessions Judge (Adhoc-2), Ernakulam. The gist of the prosecution is that on 1.12.2004 at about 9 AM he was found in possession of 9.500 litres of liquor which according to the prosecution is illicit liquor. There were 7 bottles of one litre each and 5 other bottles of 500 ml. Each. The contention raised by the petitioner is that one sample was taken from a bottle containing one litre and another sample was taken from one bottle measuring 500 ml. 2. Learned counsel submits that the report of the Chemical Examiner would show that the percentage by volume of ethyl alcohol was 40.58 as regards item A and 41.78 as regards item B. Thus, according to the learned counsel, it is not an illicit liquor. On the other hand, it is only IMFL. The submission made by the learned counsel is that the sample was not taken from all the bottles and so it cannot be found that all the bottles contained Crl.M.C.1744/08 2 liquor and there is no material before the court to show that the accused was in possession of illicit liquor or that he was in possession of IMFL in excess of the permitted quantity. 3. The total quantity, according to the prosecution is 9.500 litres. The prosecution contends that even if it is accepted that it was only IMFL and not illicit liquor, still the fact remains is that as the quantity held by him was in excess of the permitted quantity, the offence may fall under Section 63 of the Abkari Act. The contention that the samples should have been taken from all the bottles cannot be sustained since representative sample was taken from one of the 7 bottles having identical seals, labels etc. Similarly, sample was taken from one out of 5 bottles of 500 ml each. All those 5 bottles were also similarly sealed, labelled etc. Therefore in the light of the decision in Kelukutty v. State of Kerala (2009(4) KLT 286), it cannot be said that the samples should have been taken from all the bottles. Whatever that be, according to the learned counsel for the petitioner if at all it may attract only Section 63 of the Abkari Act. It is not necessary for me to make any observation with regard to the same in this order since it will be open to the petitioner to raise this Crl.M.C.1744/08 3 contention before the court below at the time of framing charge. The question whether the physical presence of the accused is to be insisted at the time of hearing the matter under Section 227 Cr.P.C will be decided by the learned trial Judge. With these observations, this Crl.M.C is dismissed. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.1744/08 4