IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 Crl.Rev.Pet.No. 3151 of 2007-D ------------------------------ CRA.596/2001 of ADDL.SESSIONS COURT9ADHOC-II), THALASSERY CC.15/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ MANIYATH UMESH, S/O.RAGHAVAN, KANNAVAM AMSOM, VATTOLI DESOM. BY ADV. SRI.P.P.RAMACHANDRAN RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA (EXCISE INSPECTOR, KUTHUPARAMBA), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. M.S. BREEZE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.3151 of 2008 = = = = = = = = = = = = = = Dated this the 3rd April, 2008 ORDER The petitioner, who was the second accused in C.C.No.15 of 1998 on the file of the Judicial First Class Magistrate, Kuthuparamba, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 26-4-1996, the petitioner along with 1st accused were found in possession of 96 bottles of Indian made foreign liquor each bottle containing 180 Ml.being transported in an autorikshaw. 3. On the side of the prosecution, four witnesses were examined as Pws.1 to4 and eight documents were marked as Exts.P1 to P8 and 8 material objects were marked as Mos.1 to 8. CRRP.3151/2007 -2- 4. Th accused denied the incriminating circumstances and maintained their innocence. They examined one independent witnesses as DW1. 5. The learned Magistrate after trial acquitted A3 and held that the charge against A1 had abated consequent on his death, but convicted the revision petitioner/A2 and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- and on default to pay the fine, to suffer simple imprisonment for three months . The conviction and the sentence imposed on the revision petitioner were confirmed in appeal by the lower appellate court, viz. Additional Sessions Judge(Adhoc-II), Thalassery in Crl.A.No.596 of 2001 dated 17-2- 2007. Hence, this revision. 6. I heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 7. Admittedly from out of the 96 bottles allegedly containing Indian made foreign liquor, 4 bottles each of 180 Ml. capacity alone were taken as sample. It is not disputed that on the date of detection, viz.26-4-1996 a person could carry upto CRRP.3151/2007 -3- 4.5 litres of Indian made foreign liquor without a permit or licence. Even if it is held that the prosecution was able to prove that 720 Ml.of sample contained in the four bottles was Indian made foreign liquor from that alone it cannot be presumed that rest of the bottles also contained Indian made foreign liquor. In view of the decision reported in Krishnankutty v. State of Kerala, 2005(3)K.L.T.568, the conviction entered and the sentence passed by the courts below without noticing the above vital aspect of the matter cannot be sustained. This revision petition is allowed. The conviction entered and the sentence passed by the courts below against the revision petitioner for an offence punishable under Section 55(a) of the Abkari Act are set aside and the revision petitioner is acquitted of the said offence and shall be set at liberty forthwith. V. RAMKUMAR, JUDGE ks.