IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 CRL.A.No.331 of 2002(A) ----------------------------- SC.144/1999 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT: ACCUSED -------------------------- BHARATHAN, S/O. PALAZHIYIL KARAPPAKUTTY, CHENNAIPPARA DESOM, PEECHI VILLAGE. BY ADV. SRI.P.K.ASHOKAN RESPONDENT: RESPONDENT --------------------------------- STATE OF KERALA REPRESENTED BY THE S.I.OF POLICE PEECHI, THROUGH PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 331 of 2002 --------------------------- JUDGMENT The accused, convicted for offence under Sections 55(a) and (i) of the Abkari Act and sentenced thereunder to undergo simple imprisonment for a term of two years and to pay a fine of Rupees one lakh and in default to undergo simple imprisonment for a term of six months with right of set off, vide judgment of the III Additional Sessions Judge (Adhoc) Fast Rack Court No.I, Thrissur in S.C.No.144/99, is the appellant. 2. The case against the appellant is that he was found standing by the side of the road near the Kurisupally at Chennaippara holding a bag, which contained 21 bottles of Ugar XXX Rum, each bottle being of 180 ml. capacity and thereby he has committed offence punishable under Sections 55(a) and (i) of the Abkari Act. When the charge framed by the Sessions Court, was read over and explained to the appellant/accused and he was questioned, he pleaded not guilty and consequently a trial of the CRA 331/02 2 case was conducted. 3. Prosecution examined PWs 1 to 4, got marked Exhibits P1 to P5 and got identified MOs 1 and 2. On the prosecution closing their evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he was being taken into custody at 12 noon from his house and being produced in court. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence so adduced, found the appellant guilty of the offence punishable under Sections 55(a) and (i) of the Abkari Act, convicted him thereunder and sentenced him as already stated. Hence this appeal. 4. It is vehemently contended before me by the learned counsel for the appellant that conviction of the appellant for offence under Sections 55(a) and (i) of the Abkari Act is not sustainable, as he CRA 331/02 3 was being found in possession only of excess quantity of Indian Made Foreign Liquor (IMFL) and the conviction could therefore be only under Section 13 read with Section 63 of the Abkari Act. He further contended that though the seizure was effected on 20.10.1997, the material objects were produced before court only on 28.10.1997, as shown in Exhibit P5 forwarding note and there is no explanation for the delay and therefore, there is no guarantee that the material objects produced were those allegedly seized from the possession of the appellant or that it had not been tampered with. It is his further contention that only three bottles were forwarded for chemical analysis; that the total quantity of liquor contained in the three bottles will only be 540 ml., which will be less than the permissible quantity of 1.5 litres of IMFL, as the Rule then stood and that inasmuch as the other 18 bottles were not subjected to chemical analysis, there is no proof that what was contained in those 18 bottles was also liquor, so as to CRA 331/02 4 attract punishment for possession of excess quantity of liquor. 5. The contention that the material objects seized on 20.10.1997 were produced before court only on 28.10.1997, as shown in Exhibit P5 and the said delay was not convincingly explained and therefore, the material objects produced cannot be presumed to be the very same bottles alleged to have been seized does not carry much weight, as in cross-examination no question was asked to the Investigating Officer or the Detecting Officer as to who was in custody of the material objects in between the seizure and production before court and whether the material objects seized had not been tampered with or substituted. No prejudice also is shown to have been caused to the accused by production of the material objects before court on the eighth day of the seizure. 6. The contention that the contents of the 21 bottles had not been subjected to chemical examination and therefore, there is no proof that CRA 331/02 5 the contents in all the 21 bottles were liquor and the contents in the three bottles got subjected to chemical examination were altogether 540 ml. only, possession of which is within the prescribed limit and therefore, no offence is made out also is untenable for the reason that such a contention had not been taken in the court below and no suggestive questions also were put to the witnesses so as to enable such contention being urged. There is no case for the appellant that the remaining 18 bottles were not similar to the three bottles, contents of which were subjected to chemical examination and found to contain alcohol, when several bottles of the same type, which contain similar liquor in sealed form, are detected and there is no dispute or suggestion that the contents in the bottles were different, it is not necessary that the contents in all the bottles should be subjected to chemical examination to ascertain that the contents in all those bottles are the same. 7. The formidable contention that is pressed CRA 331/02 6 into service by the counsel for the appellant is that Sections 55(a) and (i) have no application at all in the instant case, as possession of 21 bottles of 180 ml. each of IMFL, the quantity of which will come only to 3.78 litres, can only be a case of possession of excess quantity of liquor, when the charge framed is for illegal possession only and there is no charge that the appellant attempted to conduct sale of liquor contained in the 21 bottles. 8. The learned counsel for the appellant relies on the decision of this Court in Sabu v. State of Kerala (2003 (2) KLT 173) and the latest Division Bench decision of this Court in Mohanan v. State of Kerala (2007 (1) KLT 845). In Sabu's case (cited supra), this Court held that offence under Section 55 is not attracted if the violation of the Rule is in relation to the legal liquor permitted to be transacted within the State and the charge is for possession of excess quantity only. In that CRA 331/02 7 case, the allegation was that the accused persons were found transporting in an autorickshaw 13.9 litres of IMFL, but the prosecution has no case that, that was being so transported for sale. In Mohanan's case (cited supra), the Division bench held that Section 55(a) is applicable only in the case of illegal import, export or transport or transit on such import or export and not to cases where possession is of liquor permitted to be transacted or possessed. That was a case, where, a toddy tapper by profession was found to have in his possession toddy in excess of 2.5 litres, as that much alone was the permissible quantity to be possessed as on the date of occurrence in that case. The Division Bench further held that punishment in such cases could only be under Section 63 of the Abkari Act. 9. In the instant case, possession is of IMFL and the total quantity comes only to 3.78 litres when the quantity permitted to be possessed as on the date of commission of the offence was only 1.5 CRA 331/02 8 litres. The prosecution has no case and there is no charge against the appellant that he was possessing liquor in 21 bottles for sale. Mere possession of liquor in excess of the quantity prescribed by the Government attracts only Section 13 of the Abkari Act, punishment for which is provided under Section 63 of the Act. 10. All the same, the learned Public Prosecutor contends that the approach made by this Court in the decisions cited above cannot be applied to cases, where, 1000's of bottles of IMFL are possessed by a person and the prosecution had not been able to establish that the offender has conducted sale or that he attempted to conduct second sale of the legally obtained liquor. Obviously, in such cases of possession of very large quantity, presumption can arise that possession was not for consumption, but for sale, as it is not, in the normal course, that people will collect and store 100's or 1000's of bottles of liquor for own consumption. However, in the CRA 331/02 9 instant case, though the bottles were 21 in number, the total quantity of liquor contained in the bottles comes only to 3.78 litres, when the quantity permitted to be possessed at the relevant time was 1.5 litres. Hence, in the instant case, conviction of the appellant for offence under Sections 55(a) and (i) of the Abkari Act deserves to be set aside, as conviction could have been only for offence under Section 13 punishable under Section 63 of the Abkari Act. 11. In the result, conviction of the appellant for offence under Sections 55(a) and (i) of the Abkari Act and the sentence awarded thereunder are set aside and he is convicted for offence under Section 12 of the Abkari Act and is sentenced under Section 13 of the Act to pay a fine of Rs.5,000/-. In case of default in payment of fine, he shall undergo imprisonment for a period of six months. 4th January, 2008 (K.P.Balachandran, Judge) tkv