Appellants convicted under Abkari Act Sec.55(a) for possessing 3.175 litres of IMFL. Court held quantity exceeded limit, attracting Sec.63. Conviction under Sec.55(a) quashed, conviction under Sec.63 confirmed with reduced fine.
Conviction under Sec.55(a) set aside; convicted under Sec.63 with fine of Rs.5,000 each and one month suspension in default.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934
CRL.A.No. 650 of 2005 ( )
------------------------SC.142/2002 of ADDL.SESSIONS JUDGE (ADHOC-I), KASARAGOD CP.22/2002 of J.M.F.C.-I,HOSDRUG
APPELLANT(S)/ACCUSED 1 & 2 :-
1. V.SUNIL KUMAR, AGED 32 YEARS, S/O.KUNHAMBADY, ORKALAM DESOM, CHERUVATHUR VILLAGE.
2. T.V.BABU, AGED 31 YEARS, S/O.PATHIL RAGHAVAN, CHERUVATHUR VILLAGE HOSDURG TALUK.
BY ADV. SRI.M.RAMESH CHANDER
RESPONDENT(S)/COMPLAINANT & STATE :-
1. THE EXCISE INSPECTOR, NILESWAR, KASARAGOD.
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.JASMINE V.H.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
Crl.A. No.650 of 2005
Dated this the 6th day of September 2012
J U D G M E N T
The two appellants in this case were convicted by the learned Addl. Sessions Judge (Adhoc-I), Kasaragod for offence punishable under Sec.55(a) of Abkari Act and they were sentenced to undergo R.I. for one year and to pay Rs.1 lakh as fine. This appeal is directed against that conviction and sentence.
Crl.A. No.650 of 2005
-: 2 :-
No.VIII/256B of Cheruvathur Panchayath. Since the label description did indicate as mentioned above, the prosecution contended that the liquor bottles were brought from the State of Karnataka.
Crl.A. No.650 of 2005
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evidence given by the Detecting Officer and other witnesses would show that the liquor bottles were seized from the shop when the appellants were dealing with the same. Since there is evidence in abundance on that point, I find no reason to differ from the finding entered by the court below that those liquor bottles were seized from the shop when the appellants were dealing with by the same.
Crl.A. No.650 of 2005
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had an identical label description as found on the 8 other bottles. So, according to the prosecution, all the bottles were uniform in nature and so, separate sample was not necessary; in other words, no separate sample was required to be taken from any of the other bottles. The learned counsel submits that simply because the empty bottle contained such a label description, it cannot be said that the liquid contained in the two glasses were also of the same nature. But it is proved that when the sample was sent for chemical examination, it was found to be containing 42% by volume of ethyl alcohol which did indicate that it was IMFL.
Therefore, it can be seen that there were altogether 9 bottles of a capacity of 375ml each. Thus the total quantity would be 3.175 litres. As on the relevant date, the maximum IMFL one can possess was 1.500 litres. Therefore, the appellants can possess a total quantity of only 3 litres but it was found to be 3.175 litres.
Crl.A. No.650 of 2005
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the burden is on the accused to prove that the liquid was purchased by the accused from any of the KSBC shop/outlet and for that purpose, the appellants should have produced the bills. Not only that, the liquor bottles should have carried labels as required under Rule 23(3) of Foreign Liquor Rules.
Crl.A. No.650 of 2005
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of proof. But there is no difficulty to hold that the appellants possessed excess quantity of IMFL than one can possess at the relevant time. Hence, the offence would fall under Sec.63 of the Abkari Act.
In the result, this Crl.A. is allowed in part. The conviction and sentence passed against the appellants for the offence punishable under Sec.55(a) of Abkari Act are set aside. They are found guilty and convicted of the offence punishable under Sec.63 of the Abkari Act and they are sentenced to pay a fine of Rs.5,000/- each and in default of payment of the same, they will undergo S.I. for one month each. The appellants are granted one month time to pay the fine amount.
Sd/-N.K.BALAKRISHNAN, JUDGE.
/true copy/
Jvt
P.S. To Judge
2 issues framed by the court
Whether the appellants' possession of 3.175 litres of IMFL attracted offence under Sec.55(a) or Sec.63 of the Abkari Act given the quantity limits at the relevant time.
Whether the failure to produce bills from KSBC outlets disproved that the liquor bottles were illegally imported.
3 provisions across 2 enactments
V.SUNIL KUMAR
T.V.BABU
STATE OF KERALA
N.K.BALAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
