Quashed

Muraleedharan v. State of Kerala

Kerala HC3 Oct 2012Crl.Rev.Pet/1962/2004

Case brief

AI extract

What is this about?

In a criminal revision petition, the Kerala High Court held that mere possession of arrack does not attract Section 55(a) of the Abkari Act absent allegations of export, import, or transit. The court distinguished the conviction by the lower courts and remanded the case for retrial under Sections 8 or 58 of the Abkari Act.

What did the court decide?

Judgments of courts below quashed; case remanded to Magistrate for retrial after framing charges under Section 8 or 58 of the Abkari Act.

Muraleedharan Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`

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Crl.Rev.Pet.No. 1962 of 2004 ( )

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CC.NO.1016/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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MURALEEDHARAN. S/O.KRISHNANKUTTY, AGED 37 YEARS, KOTHAKKATTUCHIRA HOUSE, C.M.C.WARD NO. 27, CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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BY ADV. SRI.B.RAJEEV KOYICKAL

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S.SIRI JAGAN, J.

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Crl.R.P.No. 1962 of 2004

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==================

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Dated this the 3^rd day of October, 2012

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O R D E R

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The petitioner is the accused in C.C.No.1016/1997 before the Judicial First Class Magistrate's Court-II, Cherthala. He was prosecuted for an offence under Section 55(a) of the Abkari Act.

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The prosecution case is as follows:- The Special Branch Sub Inspector of Police along with the other Police Officers, while conducting petrol duty as per the direction of the Superintendent of Police, Alappuzha in Kanichikulangara Mararikkulam area, conducted a raid in the hotel managed by the accused, situated at Ward No.1 of the Cherthala South Panchayat, on 26.8.1996. The Police party seized arrack measuring 1.140 ltrs illegally kept by the accused. Thereby the petitioner committed the offence under Section 55(a) of the Abkari Act.

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The Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of ` 1000/- with a default sentence of simple imprisonment for one month. In Crl.Appeal No.26/2001

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Crl.R.P.No.1962/04 - : 2 :-

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filed by the petitioner before the Additional Sessions Judge, Fast Track-II, Alappuzha, both the conviction and the sentence were confirmed. The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition.

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Apart from challenge against the findings on fact, the petitioner also raises a legal contention that for the allegations raised against the petitioner, an offence under Section 55(a) of the Abkari Act will not lie. The contention of the petitioner is that the seizure was from a hotel room and as such, there is no allegation of export, import or transit of arrack, which only will attract Section 55(a). The petitioner relies on the following decisions of this Court in support of the above contention:

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Surendran v Excise Inspector , 2004 (1) KLT 404,

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Sudhepan v. State of Kerala , 2006(1) KLT S.N. 52 Case No.72,

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Jose v. State of Kerala , 2007 (2) KLT 202,

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Mohanan v. State of Kerala , 2007 (4) KLT 408 and

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Narayanan Nair v. State of Kerala , 2011(3) KLT 722.

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I am inclined to remand the matter to the Magistrate for further proceedings accepting the said legal contention of the petitioner and therefore I have not considered the other contentions of the petitioner.

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I have heard the learned Public Prosecutor also.

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Crl.R.P.No.1962/04 - : 3 :-

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As rightly pointed out by the learned counsel for the petitioner, in view of the decisions quoted above, it is the settled law that for mere possession of arrack, no prosecution will lie under Section 55(a), if that possession is not accompanied by export, import of transit of liquor. Admittedly in the prosecution case there is no allegation of import, export or transit of liquor. As such, the only allegation against the petitioner is regarding possession, for which, the provision applicable is Section 8 or Section 58 of the Abkari Act. Therefore, the conviction by the courts below under Section 55(a) is clearly unsustainable.

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But that does not mean that the petitioner has to be acquitted straightaway. I am of opinion that the petitioner should be tried for offence under Section 8 or Section 58 of the Abkari Act or both, whichever is applicable. In the above circumstances, I am inclined to remand the matter to the Magistrate for re-trial after framing charges under Section 8 or Section 58 or both, whichever is applicable. Accordingly, the judgments of the courts below are quashed and the case is remanded to the Judicial First Class Magistrate's Court, Cherthala, for retrial after framing charges under Section 8 or Section 58 of the Abkari Act or both, whichever is applicable. The Magistrate shall give fresh

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Crl.R.P.No.1962/04 - : 4 :-

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opportunity to the prosecution and the defence to adduce further evidence also for proving their respective cases.

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The Criminal Revision Petition is disposed of as above.

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sdk+

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Sd/S.SIRI JAGAN, JUDGE

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///True copy///

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P.A. to Judge

Muraleedharan v. State of Kerala

Case brief

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Muraleedharan v. State of Kerala

Case brief

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