Partly allowed

Raman v. State of Kerala

Kerala HC4 Apr 2014Crl.Rev.Pet/1110/2003

Case brief

AI extract

What is this about?

Revision petitioner convicted under Section 55(a) of Abkari Act for possessing 9 litres of Indian Made Foreign Liquor. Court distinguished Mohanan and Josekutty to hold offence falls under Section 63, reducing sentence to fine or short imprisonment.

What did the court decide?

Conviction under Section 55(a) set aside; convicted under Section 63 Abkari Act; sentenced to fine ₹2,000 or 3 months simple imprisonment in default.

Raman Vs State of Kerala — Cheating and Forgery | Kerala HC (2014)

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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 B.KEMAL PASHA

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FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936

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Crl.Rev.Pet.No. 1110 of 2003 ( )

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--------------------------------AGAINST THE JUDGMENT IN CRL.A. 607/2000 OF III ADDL. SESSIONS COURT, THRISSUR DATED 19-04-2003

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AGAINST THE JUDGMENT IN CC 305/1999 OF J.M.F.C., WADAKKANCHERRY DATED 29-11-2000

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REVISION PETITIONER/APPELLANT/ACCUSED:

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RAMAN, S/O.NEELAKANDAN NAIR EDAPARAMBIL, VADAKKETHARA VILLAGE KOZHIKAD DESOM, THALAPPILLY TALUK THRISSUR DISTRICT.

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BY ADVS.SRI.P.VIJAYA BHANU

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SRI.TONY MATHEW

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, REPRESENTED BY THE EXCISE INSPECTOR, PAZHAYANNUR RANGE.

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BY PUBLIC PROSECUTOR SRI.P.V.ELIYAS

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B. KEMAL PASHA, J

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------------------------------------

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Crl.R.P.No. 1110 of 2003

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------------------------------------ Dated this the 4^th day of April, 2014

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O R D E R

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The petitioner, who was convicted under Section 55(a) of the Abkari Act by the Judicial First Class Magistrate's Court, Wadakkanchery, and sentenced to undergo simple imprisonment for one year and to pay a fine of ₹25,000/-, has unsuccessfully challenged his conviction and sentence before the Sessions Court, Thrissur, through Crl.Appeal No.607/00. The learned Additional Sessions Judge concurred with the conviction and sentence passed by the court below and dismissed the appeal, through the impugned judgment.

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The prosecution case is that on 28.04.1997 at 5 p.m. the petitioner was found in possession of 24 bottles, each

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Crl.R.P.No. 1110 of 2003

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containing 375 ml of Indian Made Foreign Liquor, at Pazhayannur in Chelakkara, in front of Brother's hotel.

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On the side of the prosecution PWs.1 to 4 were examined, Exts.P1 to P3 were marked, and MOs.1 and 2 series were identified. On the side of the accused, DW1 was examined. The trial court found that the petitioner has committed an offence under Section 55(a) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned Senior Counsel for the petitioner Sri.P. Vijaya Bhanu and the learned Public Prosecutor Sri.P.V. Eliyas, for the State.

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The learned Senior Counsel for the petitioner has pointed out that even if it is conceded for argument sake that the petitioner was found in possession of such an excess quantity of Indian Made Foreign Liquor purchased from the outlet of the Kerala State Beverages Corporation, as is evident in this case, in the light of the decisions rendered by two Division Benches of

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this Court, in Mohanan v. State of Kerala [2007 (1) KLT 845]

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Crl.R.P.No. 1110 of 2003

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followed by the decision in Josekutty v. State of Kerala [2013 (1) KLT 434] , the offence that can be attracted is only one under Section 63 of the Abkari Act.

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On going through the evidence in this case, it can be seen that the fact that the petitioner was found in possession of excess quantity of Indian Made Foreign Liquor, has been proved. At that point of time a person could legally possess, and was lawfully permitted to purchase 4½ litres of Indian Made Foreign Liquor from the outlet of the Kerala State Beverages Corporation. In this particular case, the quantity of the contraband comes to 9 litres. Therefore, it is evident that the petitioner was found in possession of excess quantity of 4½ litres of Indian Made Foreign Liquor.

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Admittedly, the said excess quantity of Indian Made Foreign Liquor, which was possessed by the petitioner, was not in the course of any import or export and therefore, going by the ratio in Mohanan' s case supra , it cannot constitute an offence punishable under Section 55(a) of the Abkari Act. Going by the

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Crl.R.P.No. 1110 of 2003

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ratio in Josekutty supra , as no other offence has been provided for the possession of such excess quantity, it will squarely fall within the purview of Section 63 of the Abkari Act. Matters being so, the conviction and sentence passed by both the courts below are liable to be set aside. At the same time, it has to be noted that the petitioner has committed an offence punishable under Section 63 of the Abkari Act, for which he has to be convicted and sentenced. The maximum sentence that could be imposed during the period in question for an offence under Section 63 of the Abkari Act, was imposition of fine which may extent to ₹ 2000/- only. Considering the facts and circumstances of the case and the excess quantity which was possessed by the petitioner, I am of the view that a fine of ₹2,000/-, in default, simple imprisonment for three months will meet the ends of justice in this case.

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In the result, this Crl.R.P. is allowed in part, and the conviction and sentence passed by the trial court, which are upheld by the appellate court through the impugned judgment,

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Crl.R.P.No. 1110 of 2003

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are set aside. Instead, the revision petitioner is found guilty of the offence punishable under Section 63 of the Abkari Act and he is convicted thereunder; and sentenced to pay a fine of ₹2,000/-,

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in default, to undergo simple imprisonment for three months.

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Sd/- B. KEMAL PASHA, JUDGE

ul/-

[true copy]

P.S. to Judge

Crl.R.P.No. 1110 of 2003

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B. KEMAL PASHA, J

Crl.R.P. No. 1110 of 2003

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O R D E R

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4^th day of April, 2014

Raman v. State of Kerala

Case brief

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Raman v. State of Kerala

Case brief

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