The High Court of Kerala held that mere possession of arrack in a teashop does not attract Section 55(a) of the Abkari Act. The conviction was unsustainable; the petitioner was directed to be retried for offences under Section 8 or 58.
Impugned judgments set aside; petitioner remanded to trial court to be re-tried for offence under Section 8 or 58 of the Abkari Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
Crl.Rev.Pet.No. 723 of 2002 ( )
CRA.31/1999 of ADDL. SESSIONS COURT (ADHOC), ALAPPUZHA CC.400/1997 of J.M.F.C.-1, RAMANKARI
REVISION PETITIONER/APPELLANT/ACCUSED:
BIJU, S/O.CHACKO, AGED 27 YEARS, VANIYAPURAKKAL VEETTIL, WARD NO.7 VELIYANAD PANCHAYATH.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT/STATE:
1. S.I. OF POLICE, RAMANKARY.
2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
VK
S. SIRI JAGAN, J.
- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.723 of 2002
- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October, 2012
O R D E R
The accused in Calendar Case No.400/1997 before the Court of the Judicial Magistrate of First Class, Ramankary, is the petitioner herein. He was convicted by the Magistrate under Section 55 (a) of the Abkari Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.25,000/- for an offence under Section 55 (a) of the Abkari Act, with a default sentence of simple imprisonment for three more months. Crl. Appeal No.31/1999 filed by the petitioner before the Additional Sessions Judge, (Fast Track) Adhoc-1, Alappuzha was dismissed. The petitioner is challenging the orders of the courts below.
The prosecution case in brief is as follows:
On 07.02.1997 at 8 p.m. the accused was found possessing 8 plastic packets containing 80 ml. each of arrack for sale in his teashop situated in Ward No.7 of
Crl. Rev. Petition No.723 of 2002
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Veliyanad Panchayat and thereby the accused was alleged to have committed the offence punishable under Section 55 (a) of the Abkari Act. One of the contentions raised by the petitioner is that as laid down by this Court in several decisions mere possession of arrack will not attract Section 55 (a), unless the same is coupled with export, import or transit of liquor. The petitioner relies on the following decisions of this Court in support of the said contention:
Surendran v. Excise Inspector [2004 (1) KLT 404], Sudhepan v. State of Kerala [2006 (1) KLT SN 52 (C.No. 72)], Jose v. State of Kerala [2007 (2) KLT 202], Mohanan v. State of Kerala [2007 (4) KLT 408], Narayanan Nair v. State of Kerala 2011 (3) KLT 722
I shall consider that question first since if I accept that contention it may not be necessary to go into the other contentions at this juncture, since in that event I may have to remand the matter for fresh consideration by the trial court.
Crl. Rev. Petition No.723 of 2002
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question.
“8. Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack - No person shall manufacture, import, export, transport, transit, possess, store, distribute, bottle or sell arrack in any form”.”
Section 55 (a) of the Abkari Act reads as follows:
“ 55. For illegal import, etc :- Whoever in contravention of this Act or of any rule or order made under this Act
x x x x x
(1) for any offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and
(2) for an offence falling under clause (d) or clause
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Crl. Rev. Petition No.723 of 2002
(e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
4. A reading of Section 55 (a) would show that the
same relates to export, import or transit of liquor. Of course, for export, import or transit of liquor essentially possession should also be there. Therefore, possession, in the course of export, import or transit can only come within the purview of Section 55 (a). Possession simplicitor can come only under Section 8 or under Section 58 of the Act. I am fortified in this view by the decisions quoted above. Therefore, I am of opinion that the prosecution and conviction under Section 55 (a) is clearly unsustainable. But that does not mean that the petitioner should be acquitted on that ground straight away. In view of Sections 221, 386, 391 & 484, I am of opinion that the petitioner should be tried for an offence under Section 8 or 58, whichever is applicable. For that purpose, the matter has to be remanded to the trial court for framing charge under either or both of those Sections and for retrial. Accordingly,
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the impugned judgments are set aside. The Magistrate is directed to re-try the case, after framing fresh charge under either Section 8 or 58, or both whichever is applicable and after giving opportunity to both sides to adduce evidence, if necessary.
The Crl. R.P. is disposed of as above.
Sd/-
S. SIRI JAGAN JUDGE
//True copy//
P.A. TO JUDGE
shg/
3 issues framed by the court
Whether mere possession of arrack in a teashop attracts Section 55(a) of the Abkari Act requiring export, import, or transit.
Whether a conviction under Section 55(a) for possession simplicitor is sustainable.
Whether the prosecution should be tried for offences under Section 8 or 58 of the Abkari Act instead.
Colour shows how this judgement treated each authority
Surendran v. Excise InspectorRelied on¶25
Surendran v. Excise Inspector [2004 (1) KLT 404]
Sudhepan v. State of KeralaRelied on¶25
Sudhepan v. State of Kerala [2006 (1) KLT SN 52 (C.No. 72)]
Jose v. State of KeralaRelied on¶25
Jose v. State of Kerala [2007 (2) KLT 202]
Mohanan v. State of KeralaRelied on¶25
Mohanan v. State of Kerala [2007 (4) KLT 408]
Narayanan Nair v. State of KeralaRelied on¶25
Narayanan Nair v. State of Kerala 2011 (3) KLT 722
3 provisions across 1 enactments
BIJU, S/O.CHACKO
STATE, REP. BY PUBLIC PROSECUTOR
S. SIRI JAGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S. SIRI JAGAN
Parties & counsel
