IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 1156 of 2003() ------------------------ S.C..4/2000 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT -I, MANJERI .................... APPELLANT/ACCUSED: --------------------- PILAKKUZHI RAVUNNI S/O. KUNHAN, VALAMBUR AMSOM, ERANTHODU DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENTS/STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, PERINTHALMANNA. BY P.P.SMT. P.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1156 OF 2003 ------------------------------ Dated this the 13th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track No.I, Manjeri in S.C.No.4/2000. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and sentenced to undergo R.I for a period of 5 years and to pay a fine of Rs. One lakh and also on failure to pay the same, to undergo further imprisonment for one year. It is against that decision, the appeal is preferred by the accused. 2. The points that arise for determination in the appeal are (1) whether there are materials to convict the accused under Section 55(a) (2) whether any other offence under the Abkari Act is attracted (3) in case of guilt, whether the punishment awarded is excessive. 3. Points 1 to 3: All these points are answered together for convenience. It is the case of the prosecution that on 16.6.1997 at about 2 CRL.A.NO.1156/03 6.15 p.m, the accused was found in possession 11.890 litres of coloured foreign liquor in front of Bombay Auto Garage at Angadipuram in a big shopper bag and therefore he had been proceeded against under Section 55(a) of the Abkari Act. 4. In the trial court, Pws 1 to 6 were examined, Exts.P1 to P6 and Mos 1 and 2 were marked. The learned counsel for the appellant very strongly contends before me that the materials available are not sufficient to convict the accused and that the offence under Section 55(a) will not lie and therefore, the accused is entitled to an acquittal. 5. The accused was found in possession of 32 bottles of Indian made foreign liquor, out of which 4 bottles were of one litre capacity, 5 bottles were of 750 ml capacity and 23 bottles were of 180 ml capacity. He was apprehended by the officials and the bottles were opened and tasted and it was revealed that it is illicit Indian made foreign liquor. Thereafter all the bottles were sampled as such, sealed and produced before the court. It has to be stated that the sample was not separately taken out from the bottles and 3 CRL.A.NO.1156/03 the witnesses had spoken to the effect that at that point of time the practice was that the court has to send the samples for analysis. The apprehension, arrest and seizure was done at about 6.15 p.m on 16.6.1997 and the accused along with all the material objects were produced before the court on 17.6.1997. The court had also at random checked the sealing of the bottles personally and it is recorded by the court on physical verification that all the bottles are perfectly and identically sealed and the seal contained the imprint PP. So, the evidence with respect to the sampling and sealing is perfectly in order and the chemical analyst's report also revealed that it contained the percentage of ethyl alcohol by volume. The official witnesses, who had gone, had properly identified the accused as well as the bottles and their evidence is without much contradictions or conflictions. It is true that the independent witnesses had turned hostile. But in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N 9 Case No.17) this Court held that the independent witnesses turned hostile for reasons best known to them and 4 CRL.A.NO.1156/03 in that decision, the court considered about the acceptance of the evidence tendered by the official witnesses. 6. In this case, the official witnesses had not tendered any conflicting evidence which makes it unbelievable. Further they have no axe to grind against the accused. Therefore, everything is done in order. 7. I may refer to the legal position argued by the learned counsel. The learned counsel would contend that what is seized is only Indian made foreign liquor and therefore, at the most, the offence would come under Section 63 of the Act. In this case there is no allegation that the bottles which contained the seal of the Kerala State Beverages Corporation were seized so as to attract violation of the rules regarding the excess quantity possessed by a person. The source of the liquor is not revealed and not explained. So, the said argument cannot be accepted. 8. The learned counsel would contend that the offence under section 55 (a) of the Abkari Act is not sustainable in the light of the decision of this Court reported in Mohan v. 5 CRL.A.NO.1156/03 State of Kerala (2007 (1) KLT 845). This Court held that Section 55(a) comes into play when there is export, import, transport or possession and Section 55(a) is attracted with respect to possession only when it is being illegally transported as well. So, in the light of that decision, one cannot hold that the possession was found with the accused while illegally transporting and so an action under Section 55(a) as contended by the learned counsel is not sustainable. 9. I agree with the submission of the learned counsel and hold that Section 55 (a) is not attracted, but then the next question would be whether it can come under any other sections of the Abkari Act. Section 58 deals with the question of possession. But the only additional thing to be proved there, is conscious possession. Admittedly, in a plastic bag the accused was found carrying 32 bottles of Indian made foreign liquor. It is his burden to explain how he came into possession and it will also show that it contained different size of bottles. Further it has also come out in evidence that the accused was a person, who was working in an arrack 6 CRL.A.NO.1156/03 shop and had lost his employment on account of the closing down of the arrack shop by the Government. So, it is very clear that his possession is conscious and Section 58 is attracted. Whether a conviction can be had under Section 58 in a case where charge is made under Section 55(a). In the decision reported in Shaji v. State of Kerala (2007 (1) KLT SN 42 Case No.58) the court held that “when the appellant was charged under Section 55(a) of the Abkari Act, he was found guilty under Section 58 of the Abkari Act. Though the above sections are dealing with different offences, the nature of punishment be awarded is one and the same. Unless and until it is proved by the appellant that he would cause any prejudice by awarding punishment under Section 58 of the Abkari Act, Court is not inclined to interfere with the conviction and sentence awarded under Section 58 of the Act”. Therefore, following the dictum laid down therein, I find that the accused is guilty under Section 58 of the Abkari Act. 10. Now, turning to the question of sentence. The court below had been very harsh. The learned counsel for the 7 CRL.A.NO.1156/03 appellant had brought to my notice the fact that the accused in the year 2008 had a very serious heart problem and thereafter undergone a cardiac surgery and therefore the learned counsel would submit that maximum leniency may be shown in this case. 11. I feel, interest of justice requires leniency to be shown as the accused was not in possession of any liquor which is totally prevented to be drunk by the people and he was a person who was thrown out of the job on account of the governmental policy. It has also come out in evidence that he had undergone a by pass surgery. So, I feel, punishment can be imposed as 3 months S.I. under Section 58 of the Abkari Act with a fine of Rs. One lakh and in default to undergo S.I for a period of one month. 12. In the result, the criminal appeal is disposed of as follows: (1). Conviction and sentence under Section 55(a) of the Abkari Act is set aside. (2). The accused is found guilty under Section 58 of the 8 CRL.A.NO.1156/03 Abkari Act and convicted thereunder and sentenced to undergo S.I. for a period of 3 months and to pay a fine of Rs. One lakh and in default of which he shall undergo further imprisonment for a period of one month S.I. He shall be entitled to set off as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 9 CRL.A.NO.1156/03 10 CRL.A.NO.1156/03