Criminal appeal against conviction under Section 58 of the Abkari Act for possession of illicit liquor. High Court set aside conviction after holding that the possessed quantity did not exceed the limit prescribed by Government Notification S.R.O. 127/99. Appellant acquitted.
Conviction and sentence set aside; appellant acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937
CRL.A.No. 1872 of 2004 ( )
AGAINST THE JUDGMENT IN SC 563/2003 of III ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK, COURT NO.I, THRISSUR DATED 30-10-2004
APPELLANT(S)/ACCUSED:
SULOCHANA, W/O. VELLANTHARA SIDHARTHAN, VELLARAMPADAM, VARANDARAPPILLY.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.PRASUN.S
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
P.D. RAJAN, J.
Crl.Appeal No.1872 of 2004
Dated this the 10th day of February, 2016
JUDGMENT
This appeal is preferred against the conviction and sentence
in S.C.No.563/2003 of Additional Sessions Judge (Adhoc), Fast
Track Court No.1, Thrissur for offence punishable u/s.55(a) of the Abkari Act. The charge against the appellant is that on 11.6.99 at 9.30 a.m., the Excise Inspector, Irinjalakkuda Range proceeded to arrest the accused in O.R.No.27/1999 of Irinjalakkuda Excise Range, at that time, the accused was found in front of the house, on seeing the Excise party, the accused entered inside the house and tried to close door. The Excise Inspector immediately prepared a search memorandum, thereafter he conducted a search inside the house and seized 4
litres 125 ml (11 bottles each containing 375ml) foreign liquor
Crl.A.No.1872/2004 2
from there. The accused was arrested. The arrest was recorded in O.R.27/99, reaching at the Excise Office, registered a crime 38/1999. After completing investigation, he laid charge before Judicial First Class Magistrate Court, Irinjalakuda, from there the case was committed to Sessions Court, Thrissur. Subsequently, it was made over to III Additional Sessions Judge (Adhoc) Fast Track Court No.1, Thrissur.
marked Exts.P1 to P12 as documentary evidence. The material objects MO1 to MO4 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She did not adduce any defence evidence. The learned Sessions Judge convicted her u/s.58 of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of 1 lakh, in₹ default of payment of fine, rigorous imprisonment for three
Crl.A.No.1872/2004 3
months. Being aggrieved by that, she preferred this appeal.
that there is no evidence to prove that the appellant was in possession of illicit liquor. As per notification, S.R.O. No.127/99, the appellant and her husband are entitled to
possess six litres of Indian Made Foreign Liquor. Prosecution
has not produced any document to show that the appellant was
in possession of liquor, which was unlawfully imported, transported or manufactured.
accused was arrested in connection with another Crime O.R.27/1999 and in this case, she was in possession of liquor more than the permitted quantity.
“S.R.O.No.127/99:- In exercise of the powers conferred by sections 10 and 13 of the Abkari Act, of the 1077 and in
Crl.A.No.1872/2004
4
supersession of all the previous notification on the subject issued under the said sections, the Government of Kerala hereby notify that no person, not being a licensed manufacturer or vendor of liquor, shall have in his possession or shall transport any liquor specified in column (1) of the table below exceeding the quantity shown against it in column (2) thereof, except under a permit or license, as the case may be, issued by the competent authority under the said Act [G.O. (P) No.22/99/TD dt. 5- 2-1999, in K.G. Ex. No.250 dt. 5-2-1999.]
TABLE
| _____________________________ Kind of liquor -------------------------------------- (1) |
__________________ Quantity ------------------------ (2) |
|---|---|
| -------------------------------------- 1. Toddy |
------------------------ 2.5 litres |
| 2. Indian Mad Foreign Liquor | 3 litres |
| 3. Beer | 7.8 litres |
| 4. Wine | 7.8 litres |
| 5. Foreign Made Foreign Liquor | 4.5 litres |
| 6. Coco brandy | 1.5 litres |
| [xxxxx] |
[provided further that the Ex-servicemen/Defence personnel may possess their quota of liquor, subject to production of their identity cards and the bills regarding the issue of the liquor or necessary certificates to that effect from the canteen officer who issued the liquor, for verification].”
6. The evidence of PW1 shows that on 11.6.99, while he
was the Preventive Officer, Excise Range Irinjalakkuda, the
Excise party proceeded to the house of the appellant to arrest
Crl.A.No.1872/2004
5
her in connection with Crime No.27/99. When PW1 and (Excise Inspector) PW6 arrived there, the appellant was found in the courtyard and on seeing the Excise Party, she went inside her house, they resisted her and prepared a search memorandum, thereafter conducted a search inside the house and detected 11 bottles of foreign liquor each containing 375ml. The appellant was arrested and the contraband articles were seized, after preparing Ext.P1 mahazar. Empty bottles were marked as MO2 and MO3 series. He also seized MO4 from the house of the appellant. PW1 has not stated whether it was manufactured by the appellant and he informed that there was no seal of KSBC.
Exts.P1 to P3. Ext.P2 is the arrest notice and Ext.P3 is the search list, but he did not see the seizure of the foreign liquor. PW3 is the supply officer, Taluk Supply Office, Mukundapuram. He admitted that he issued Ext.P4 ration
Crl.A.No.1872/2004 6
card. As per Ext.P4, the appellant and her husband were residing in House No.546(old), 434 (new) of Varandarappally Panchayat, Ward No.13 (new 17). As per Ext.P4, Siddhardhan
and Sulochana are the holders of the ration card. PW4 prepared Ext.P5 sketch. PW5 conducted investigation and laid charge. The seized articles were examined in the chemical examiner's lab and obtained Ext.P6 report. It is found in
Ext.P4 that appellant and her husband are residing in that house. As per SRO issued by the Government of Kerala in the year 1999, both husband and wife can possess six litres of foreign liquor in their house. Ext.P6 report shows that 39.84% volume of ethyl alcohol was detected in the sample . If that be the position, an illegal arrest was made by the Excise officials in this case. The learned Sessions Judge failed to appreciate the notification SRO 127/99 issued by the Government of Kerala on 5.2.1999.
In the result, the conviction and sentence passed by the
Crl.A.No.1872/2004
7
Additional Sessions Judge, Fast Track-I u/s.58 of the Abkari
Act are set aside. The accused is acquitted and set at liberty.
Crl.Appeal is allowed as above.
P.D. RAJAN, JUDGE.
acd
Crl.A.No.1872/2004 8
2 issues framed by the court
Whether the appellant was in unlawful possession of foreign liquor exceeding the permitted limit under S.R.O. No.127/99.
Whether the evidence regarding the seizure of liquor and applicable notification S.R.O. 127/99 was properly appreciated by the trial court.
3 provisions across 2 enactments
Sulochana
State of Kerala
P. D. Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
