Allowed

Dinesh v. State of Kerala

Kerala HC14 Aug 2013CRL.A/1136/2013

Case brief

AI extract

What is this about?

Court allowed the criminal appeal challenging the confiscation of the appellant's motor cycle. It held that since the conviction was only for possession under Section 13 and not transportation under Section 55(a), the vehicle was not used for the commission of the proved offence, making the confiscation order illegal.

What did the court decide?

Criminal appeal allowed; judgment under appeal set aside to the extent it orders confiscation of the motor cycle; appellant directed to file application for return.

Dinesh Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2013)

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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 HARUN-UL-RASHID

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WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935

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CRL.A.No. 1136 of 2013 (D)

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AGAINST THE JUDGMENT IN SC 52/2013 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-I), PALAKKAD DATED 07-06-2013

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APPELLANT/ACCUSED:

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DINESH AGED 30 YEARS S/O, NARAYANAN, MANDAM MAKKAYIL VEEDU THRITHALA, PALAKKAD.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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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.SAREENA GEORGE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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HARUN-UL-RASHID, J.

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Crl.Appeal No.1136 Of 2013 ---------------------Dated this the 14^th day of August, 2013.

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J U D G M E N T

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The appellant is the accused in S.C.No.52/2013 on the file of the Additional District and Sessions Court (Ad-Hoc I), Palakkad. The appeal is directed against the judgment dated 7.6.2013 to the extent it affects the release of the appellant's motor cycle bearing Reg.No.KL-52-B-1258. The case was charge sheeted against the accused for the offence punishable under Section 55(a) of the Abkari Act alleging that he was found in possession and transporting 7.635 litres of Indian Made Foreign Liquor carried in a big shopper and riding a motor cycle bearing Reg.No.KL-52-B-1258 thereby committed the offence punishable under Section 55(a) of the Abkari Act.

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The court below found that the accused is guilty under Section 13 r/w 63 of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for a period of 19 days, further to pay a fine of ` 5,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. Parties hereinafter are referred to as arrayed in the sessions case.

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Crl.A.No.1136 Of 2013

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After hearing the parties, the court framed charge under Section13 r/w Section 63 of the Abkari Act. The court found that prosecution materials on record even if taken at its face value and accepted in its entirety, do not prima facie constitute an offence under Section 55(a) of the Abkari Act, on the other hand constitute only an offence under Section 13 punishable under Section 63 of the Abkari Act. When charge under Section 13 punishable under 63 of the Abkari Act was read over and explained to the accused, he pleaded guilty. The court after considering the materials on record found that mere possession of excess quantity of liquor without permit or licence only amounts to violation of Section 13 and it is punishable under Section 63 of the Abkari Act.

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The appellant has undergone the sentence of imprisonment imposed by the court below. The court below also directed to confiscate the properties which includes the appellant's motor cycle bearing Reg.No.KL-52-B-1258. The motor cycle was seized on the date of occurrence alleging that it was used for transportation of illicit liquor. During the course of trial the court found that charge under Section 55(a) of the Act is not sustainable and therefore framed the charge under Section

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Crl.A.No.1136 Of 2013

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13 finding that possession of liquor more than the permitted quantity amounts to violation of Section 13 of the Act only. The motor cycle was seized on the date of the alleged incident. If the offence charged and proved is under Section 13 of the Act, the judgment shows that the motor cycle has not been used for the commission of any offence. The court below did not apply its mind and passed a single sentence ordering confiscation of the properties produced by the prosecution. Going by the charge and conviction it is clear that the court below did not accept the prosecution case that the illicit liquor was transported in the vehicle attracting the offence under Section 55(a) of the Act. Therefore, confiscation of the appellant's motor cycle cannot stand legally. The appellant is at liberty to file application for return of the motor cycle.

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In the result, the appeal is allowed. The judgment under appeal is set aside to the extent it orders confiscation of the motor cycle. There will be a direction to the court below to pass appropriate orders on the application to be submitted by the appellant as directed in this judgment.

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HARUN-UL-RASHID, Judge.

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bkn/-

Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

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