IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 305 of 2003(A) ----------------------- SC.90/2000 OF ADDL. DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, MANJERI. C.P.NO.3 OF 2000 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, PARAPPANANGADI. .................... APPELLANT(S): ACCUSED --------------------- SHANMUGHAN ALIAS RAJAN, S/O.PANHAN, MENOTHIL HOUSE, KERALADEESWARAPURAM, MOOLAKKAL. BY ADV. SRI.C.S.SUNIL SMT.SARITHA SUNIL RESPONDENT(S): COMPLAINANT/STATE -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. C.M.KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A. No. 305 of 2003 A =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the accused is to the judgment of the Addl. District and Sessions Judge (Adhoc), Fast Track Court No.I, Manjeri dated January 27, 2003, convicting him under section 55(i) of the Abkari Act and sentencing him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of two years. 2. The case of the prosecution, as shaped in evidence, before the trial court, in brief is this:- On May 11, 1999 at about 6.15 p.m. PW1, the then Sub Inspector of Police, Tanur Police Station along with PW.2 Constable attached to that station were patrolling near Tirur-Tanur public road, and when they reached Moolakkal Angadi they found the accused in possession of Crl.A. No.305/2003 2 two bottles, each containing 375 ml. of Indian Made Foreign Liquor and another bottle of 375 ml., containing 150 ml. of Indian Made Foreign Liquor and one glass and two empty bottles. He was arrested from the spot and the articles were seized. After completing the investigation charge was laid before the committal court, Judicial First Class Magistrate, Parappanangadi. 3. Before the committal court copies of the documents relied on by the prosecution were furnished to the accused. As the offence under section 55(i) of the Abkari Act is triable exclusively by a Sessions Court, the case was committed to the Sessions Court, Manjeri, from where it was made over to the trial court for trial and disposal. 4. The accused, on appearance before the trial court, pleaded not guilty to a charge under section 55(i) of the Abkari Act. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P5 and MOs.1 to 5 were marked. When he was questioned under section 313 Cr.P.C. by the trial court, he denied the incriminating circumstances. No Crl.A. No.305/2003 3 evidence was adduced on the side of the defence. The trial court, on an appreciation of the evidence, found the accused guilty under section 55(i) of the Abkari Act, convicted him there under and sentenced him as aforesaid. The accused has come up in appeal challenging his conviction and sentence. 5. The following points arise for consideration:- 1) Whether the conviction of the revision petitioner under section 55(i) of the Abkari Act the trial court can be sustained. 2) Whether the sentence imposed on the appellant is excessive or unduly harsh? 6. PWs.1 to 5 were examined before the trial court and Exts.P1 to P5 and MOs.1 to 5 were marked. PW1 is the then Sub Inspector of Police, Tanur Police Station. He is the detecting officer. PW2 is the Constable who accompanied him. PW3 is the Village Officer who prepared Ext.P3 plan of scene of incident and Ext.P4 scene mahazar. PW4 is the the independent witness to the scene mahazar. Ext.P5 is the Crl.A. No.305/2003 4 Chemical Analyst's report. MOs.1 to 5 are the articles allegedly seized from the accused. PW5 is the Investigating Officer. 7. Learned counsel for the appellant mainly argued that during the relevant period the permissible quantity of Indian Made Foreign Liquor that a person can possess was 4.5 litres and the accused was found in possession only 900 ml. of Indian Made Foreign Liquor and that therefore a charge under section 55(i) of the Abkari Act will not lie against the accused. There is some force in the above contention. The offence was detected on 11-5-1999. During the relevant period the permissible quantity of I.M.F.L. that can be possessed by an individual was 4.5 litres as revealed from S.R.O. No.225/1998 dated 5-3-1998. Though it was alleged that the accused was found selling the liquor, it is not proved by the prosecution. The learned Public Prosecutor points out that there is no seal of the Beverages Corporation on the bottles and that therefore the liquor seized has to be considered as illicit liquor and that Crl.A. No.305/2003 5 therefore there is violation of Rule 26 of the Foreign Liquor Rules, which appears to be correct. Therefore, in my view charge under section 55(i) of the Abkari Act will not lie against the appellant and conviction of the appellant under section 55(i) of the Abkari Act cannot be sustained. That being so, the appellant has to be acquitted of the charge under section 55(i) of the Abkari Act and instead he has to be convicted under section 63 of the Abkari Act for violation of Foreign Liquor Rules. No other point is argued before me. 8. Under section 63 of the Abkari Act, the maximum punishment that can be imposed is fine upto Rs.5,000/- or imprisonment upto two years or both. Taking into consideration the fact that he was found in possession of 3 bottles of Indian Made Foreign Liquor, each containing 375 ml., I feel that fine of Rs.1,000/- would meet the ends of justice. 9. In the result, the appeal is allowed in part. The appellant/accused is acquitted of the charge under section Crl.A. No.305/2003 6 55(i) of the Abkari Act. Instead the appellant is convicted under section 63 of the Abkari Act and he is sentenced to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. One month’s time is granted for payment of the fine. His bail bonds are cancelled. Sd/- P.Q. BARKATH ALI, JUDGE. mn /true copy/ P.S. to Judge.