IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 CRL.A.No. 274 of 2003() ----------------------- SC.222/2000 of ADDL. DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC-II), KOZHIKKODE .................... APPELLANT(S): ACCUSED: ---------------------- BABU, S/O. NARAYANAN, MAVULLAKANDIYIL HOUSE, THRIKKOTTOR AMSOM DESOM, KOYILANDY TALUK, CALICUT. BY ADV. SRI.DEVAPRASANTH.P.J. SRI.CHERIAN SEBASTIAN RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M.KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl..M.P. No. 1548/2003 in Crl.R.P. No. 274/2003 Dismissed 18 -11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A.No. 274 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 18th day of November, 2009. O R D E R Challenge in this appeal by the accused is to the judgment of the Addl. District and Sessions Judge Fast Track (Adhoc II), Kozhikode in S.C. No.222 of 2000 dated January 16, 2003 convicting him under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for six months. 2. The case of the prosecution as shaped in evidence before the lower court was that on June 20, 1998 at about 12.10 noon the accused was found transporting 5 bottles of Indian Made Foreign Liquor each containing 750 ml. in a plastic cover from Mahe to Kerala in a bus bearing registration No.KL 11/G 5292 along the National Highway infront of Azhiyoor Check Post at Azhiyoor and that thereby committed the offences punishable under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules. Crl.A.274/03 2 3. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence under section 55(a) of the Abkari Act is exclusively triable by a Court of Sessions, the case was committd to the Sessions Court, Kozhikode from where it was made over to the Assistant Sessions Court, Vadakara and later to the trial court for trial and disposal. 4. The accused on appearance before the trial court pleaded not guilty to the charge under scstion 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules. PWs.1 to 7 were examined and Exts.P1 to P11 and MOs.1 and 2 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, he denied having committed any offence. No defence evidence was adduced. 5. The trial court on an appreciation of the evidence found the accused guilty of the offence punishable under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules, convicted him thereunder and sentenced him as aforesaid. Now the accused has come up in appeal challenging his conviction and sentence. 6. Heard learned counsel for the appellant and learned Public Prosecutor. 7. The following points arise for consideration : Crl.A.274/03 3 1) Whether the conviction of the appellant under section 55 (a) of the Abkari Act and rule 9 of the Foreign Liquor Rules by the trial court can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 8. PWs.1 to 7 were examined and Exts.P1 to P11 and MOs.1 and 2 were marked on the side of the prosecution to prove the guilt of the appellant. PW1 is the then Excise Inspector of Nadapuram who was on spcial duty in Excise Cheque Post, Azhiyoor and detected the offence. He testified before the lowoer court that on that day at about 12.10 noon when he was engaged in vehicle check duty along with PWs.3 and 6 Preventive Officers and on searching the bus bearing registration No.KL 11/G 5292 he found accused sitting on the right side of the back seat of the bus with a plastic bag and on examining the bag contained 5 bottles of Indian Made Foreign Liquor each containing 750 ml. of Indian Made Foreign Liquor. The appellant was arrestd and PW1 prepared arrest memo and seized the bootles and the bag by preparing search list Ext.P1 in the presence of the conductor and the driver of the bus. Ext.P3 is the seizure mahazar. PWs.3 and 6 who were along with PW1 at the time of search and seizure of contraband articles from the accused are the Preventive Officers. I have gone through their evidence. Nothing was brought out in cross examination Crl.A.274/03 4 to discredit their evidence. No serious discrepancies were pointed out in their evidence to disbelieve them. Therefore, in my view that the trial court has rightly relied on their evidence regarding the search and seizure. 9. PW2 is the Village Offier who prepared site plan Ext.P5, which is not disputed. PW4 is the Excise Inspector who filed Ext.P9 requisition in court for sending the sample for analysis. PW5 is the Conductor of the bus who turned hostile and did not support the prosecution. PWs.3 and 6 are testified in terms of the prosecution. PW7 is the Excise Inspector who conducted the invstigation. 10. The case of the appellant was of total denial. But the evidence adduced on the side of the prosecution proves beyond doubt that the accused was carrying 5 bottles of Indian Made Foreign Liquor each containing 750 ml. of Indian Made Foreign Liquor as alleged by the prosecution. Therefore, I am inclined accept the finding of the trial court that the appellant was found in possession of 5 bottles of Indian Made Foreign Liquor each containing 750 ml. without any valid permit. 11. Next question is whether the conviction under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules will lie against the appellant. Admittedly, the permissible quantity of Indian Made Foreign Liquor that can be carried by a person is 1.5 litres as seen from S.R.O. Crl.A.274/03 5 No.127/99 dated 5-2-1999. That being so, the accused can only be found guilty of violations of sections 10 and 13 of the Abkari Act for having been in possession of Indian Made Foreign Liquor in excess of the permissible quantity prescribed under Government Notification S.R.O. 127/99 dated 5- 2-1999, which is punishable under section 63 of the Abkari Act. Therefore, the conviction of the appellant under section 55(a)of the Abkari Act and rule 9 of the Foreign Liquor Rules by the trial court is set aside and he is convicted under section 63 of the Abkari Act. 12. As regards the sentence, the maximum sentence that can be imposed under section 63 of the Abkari Act is a fine of Rs.5,000/- or imprisonment which may extent to two years. The appellant was found in possession of 5 bottles of Indian Made Foreign Liquor each containing 750 ml. of Indian Made Foreign Liquor. No previous conviction is pleaded or proved against the appellant. Therefore, I feel that a sentence of fine of Rs.5,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 13. In the result, the conviction of the appellant under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rule is set aside and he is convicted under sections 10 and 13 read with section 63 of the Abkari Act and sentenced to pay a fine of Rs.5,000/- , in default to undergo simple Crl.A.274/03 6 imprisonment for three months. One month's time is granted for payment of fine. His bail bonds are cancelled. The revision petiton isallowed in part as found above. P.Q.BARKATHALI, JUDGE mn Crl.A.274/03 7 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A.No. 274 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 18 th day of November, 2009.