IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 Crl.Rev.Pet.No. 433 of 2004() ----------------------------- CRA.343/2001 of SESSIONS COURT, TRIVANDRUM CC.452/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------------------------- BABU, S/O. VASU PANICKER, PLAVILA VEEDU, KAVUPPURA MUKKU KOTTAKKAKAM MURI, ARYANADU VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.D.KISHORE RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, EXCISE RANGE, NEDUMANGAD. BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== Crl.R.P.No.433 of 2004 ================================== Dated this the 26th day of February, 2008. ORDER Petitioner stands convicted for an offence punishable under the provisions of the Abkari Act and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.25,000/-, in default to undergo simple imprisonment for another three months. Such sentence was imposed on the accused and the Court of first instance upheld the prosecution case that the accused had committed the offence punishable under Sections 55(a) and 8 of the Abkari Act. The appellate court has confirmed the conviction and sentence. 2. The date of occurrence is 1-3-1997. The allegation against the petitioner is that he was apprehended at about 8 a.m. on that day by the CRRP433/2004 -:2:- Excise Circle Inspector, Nedumangad while on patrol duty in the Aryanad Iythi road and the accused person was found to be in possession of a black can containing a liquid which the intercepting officer tentatively noted it to be arrack and on the basis of the chemical analysis report and other materials, including those in support of seizure and arrest, the accused was put to trial. 3. The findings by the courts below are in terms of the prosecution case which, as already noted, is regarding the interception and arrest of the petitioner and seizure of liquor from the petitioner. Based on this, the learned counsel for the petitioner argued that even if the entire allegations are proved, it may not be a case where the accused could be punished under Section 55(a) of the Abkari Act, since the possession of arrack is not alleged to be in connection with the import, export or transit. Though this argument, on a CRRP433/2004 -:3:- plain reading of the provision contained in Section 55(a), may not look acceptable, it has been laid by this Court in Mohanan v. State of Kerala [(2007(1) KLT 845 (DB)] following an earlier decision of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) that Section 55(a) of the Abkari Act is attracted only where the person illegally imports or transports liquor or is in possession of liquor while illegally importing. Following that judgment, similar cases appear to have been decided by this Court in Raman v. State of Kerala (2007 (4) KLT 223) and Mohanan v. State of Kerala (2007 (4) KLT 408). 4. Applying the aforesaid decisions, in the absence of any allegation that the possession of arrack by the petitioner was in connection with the import, export or transit of such material, the offending provision would obviously be Section 8, CRRP433/2004 -:4:- which, at the relevant point of time, did not prescribe a punishment by itself and the penalty would fall under Section 63 of the Abkari Act. 5. For the aforesaid reasons, the findings against the petitioner are confirmed, but the conviction and sentence imposed by the courts below are modified to be an order of conviction only under Section 63 read with Section 8 of the Abkari Act and the revision petitioner, the accused is sentenced to pay fine of Rs.5,000/- in default of which, he is sentenced to undergo simple imprisonment for one month. The petitioner shall appear before the Judicial Magistrate of the First Class-I, Nedumangadu at 10.30 a.m. on 27th May, 2008 failing which, that court is directed to take expeditious steps for the prompt execution thereof. The office will transmit the records to the trial court forthwith. CRRP433/2004 -:5:- Criminal Revision Petition is disposed of accordingly. The Office shall transmit the records to the trial court forthwith. Thottathil B.Radhakrishnan, Judge. sl.