Remanded

Nagesh v. State of Kerala

Kerala HC6 Nov 2012Crl.Rev.Pet/589/2003

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala held that mere possession of illicit liquor without proof of import, export, transport, or transit does not constitute an offence under Section 55(a) of the Abkari Act,quashing the conviction. The case was remanded for a fresh trial under Section 8 or 58 of the Abkari Act.

What did the court decide?

Judgments of courts below set aside; case remanded to trial court for fresh trial on charge under Section 8 or 58 of Abkari Act.

Nagesh Vs State of Kerala — Narcotics (NDPS) | 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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TUESDAY, THE 6TH DAY OF NOVEMBER 2012/15TH KARTHIKA 1934

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Crl.Rev.Pet.No. 589 of 2003 ( )

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CRA.188/1999 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD SC.34/1998 of SUB COURT, KASARAGOD

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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NAGESH, S/O.THIMMAPPA, AVALASAG VEEDU, SAJIKADA BAYAR, KASARAGOD TALUK.

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BY ADVS.SRI.V.N.ACHUTHA KURUP (SR.) SRI.BINDU SREEKUMAR

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COMPLAINANT(S)/RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. PUBLIC PROSECUTOR SMT.SREENA.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-11-2012, 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. 589 of 2003

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================== Dated this the 6^th day of November, 2012 O R D E R

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The petitioner is the accused in Sessions Case No.34/1998 before the Assistant Sessions Judge, Kasaragod. He was prosecuted under Section 55(a) of the Abkari Act. The allegations against the petitioner as detailed in the judgment of the Assistant Sessions Judge are as follows:

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“3. The allegation against the accused is that on 8.8.97 he has found to be in possession of 78 packets of arrack. According to the first information statement, on this day, the articles were seized from the person of accused, who was on the western side of Bayarpadavu Dhanathadka road at Sharamkuthi in Bar village.”

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The Assistant Sessions Judge convicted the petitioner and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 1 lakh with a default sentence of imprisonment for six months. The petitioner was allowed set off of the detention period already undergone. The petitioner filed Crl.Appeal No.188/1999 before the Additional Sessions Judge (Ad Hoc)-I, Kasaragod, who confirmed the conviction and sentence. The petitioner is challenging the judgments of the courts below.

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One of the contentions raised by the petitioner is that the allegations against the petitioner do not constitute an offence

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Crl.R.P.589/03 - : 2 :-

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under Section 55(a). According to the petitioner, for constituting an offence under Section 55(a), mere possession of illicit liquor is not sufficient, but the possession should be in the course of import, export, transport or transit of liquor. Here there is no allegation of import, export, transport or transit of liquor and, therefore, the prosecution under Section 55(a) of the Abkari Act will not lie. In support of this contention, the learned counsel for the petitioner relies on the decision of this Court in Surendran v. Excise Inspector , 2004 (1) KLT 404. The petitioner also argues on the merits of the case. According to the petitioner, the allegations as raised now themselves have not been proved beyond any reasonable doubt.

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I have heard the learned Public Prosecutor also.

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Since I am inclined to accept the first contention of the learned counsel for the petitioner as stated above, I am not going into the other contentions raised by him. The allegation against the petitioner has been quoted above. That does not contain any whisper that the petitioner was actually apprehended in possession of liquor in the course of import, export, transport or transit. Therefore, the decision in

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Crl.R.P.589/03 - : 3 :-

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Surendran's case (supra) squarely applies to the facts of this case. As such, on the basis of the charge, a prosecution under Section 55(a) of the Abkari Act would not lie. Therefore, the petitioner is entitled to succeed in this Criminal Revision Petition on that point. But that does not mean that the petitioner has to be acquitted of the offence in this Criminal Revision Petition. It is settled law that if the facts proved constitute another offence, it would be perfectly open to the court to alter the charge and convict the accused for the altered charge, if the same is made out by the evidence. I am inclined to do the same in this case. For that purpose, I remand the matter for fresh trial and disposal either for an offence under Section 58 or Section 8 of the Abkari Act. Accordingly, this Criminal Revision Petition is disposed of as follows;

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The judgments of the courts below are set aside. The case is remanded to the trial court for fresh trial and disposal after framing a charge either under Section 8 or Section 58 of the Abkari Act or both.

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sdk+

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Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge

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Crl.R.P.589/03 - : 4 :-

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S.SIRI JAGAN, J.

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================== Crl.R.P.No. 589 of 2003

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

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O R D E R

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6^th November, 2012

Nagesh v. State of Kerala

Case brief

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Nagesh v. State of Kerala

Case brief

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