Appeal against conviction and sentence for possession of foreign liquor under s.55(a) of Abkari Act. Court held prosecution proved excess possession rather than sale; set aside conviction and sentenced appellant to fine under s.63 of the Act.
Conviction and sentence u/s.55(a) set aside and convicted under s.63 of Abkari Act with fine of ₹5,000.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937
CRL.A.No. 2245 of 2005 ( )
AGAINST THE JUDGMENT IN SC 920/2001 of DISTRICT AND SESSIONS JUDGE (FAST TRACK COURT-I)THIRUVANANTHAPURAM DATED 24.11.2005 CP 109/2000 OF JUDICIAL FIRST CLASS MAGISTRATE-II, ATTINGAL IN CR.NO.119/2000 OF MANGALAPURAM POLICE STATION
APPELLANT(S)/ACCUSED:
APPUKUTTAN, S/O.PARAMU, CHEMBARATHIVILA, KONOTHUVILA,, MUNDAKKALMURI, VEILOOR VILLAGE.
BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.SAJU.S.A
RESPONDENT(S)/STATE/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N. SURESH.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
P.D. RAJAN, J.
Crl.Appeal No.2245 of 2005
Dated this the 25th day of February, 2016
JUDGMENT
This appeal is preferred against the conviction and sentence in S.C.No.920/2001 of Additional Sessions Judge, (Fast Track, Court-I), Thiruvananthapuram u/s.55(a) of the Abkari Act. The charge against the appellant is that on 25.4.2000 at 5.30 p.m., he was found in possession of 30.925 litres of Indian Made Foreign Liquor in 75 bottles without valid permit or licence in his stationary shop in front of his house Chemaparathyvila house, Konathuvila on the opposite side of Murikkkumpuzha St. Augustine High School, in Valloor Village by the Sub Inspector of Police, Mangalapuram. The appellant was arrested and the contraband articles were seized, after preparing a mahazar, reaching at the Police Station, he registered a crime. After
Crl.. Appeal No.2245/2005 2
completing investigation, Sub Inspector of Police,
Mangalapuram laid charge before Judicial First Class Magistrate-II, Attingal u/s.55(a) and (i) r/w.58 of Abkari Act, from there the case was committed to Sessions Court, Thiruvananthapuram. Subsequently, it was made over to Additional Sessions Judge, Fast Track-I, Thiruvananthapuram.
marked Exts.P1 to P7 as documentary evidence. The material objects MO1 to MO3 series were admitted by the trial Court.
The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for two years and
fine of ₹1lakh, in default of payment of fine, rigorous imprisonment for one year. Being aggrieved by that, he preferred this appeal.
Crl.. Appeal No.2245/2005
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evidence of PW3, who is the detecting officer in this case. His evidence shows that on 25.4.2000 at 4.30 p.m., he reached at Murukkumpuzha junction, at that time, he got information that the appellant was conducting sale of foreign liquor in his shop. He reached in front of the stationary shop at 5 p.m. and prepared Ext.P4 search memorandum, thereafter conducted a search inside the shop. He detected MO1 series to MO3 series from there. The contraband articles were seized after preparing Ext.P2 mahazar and sealed at the place of occurrence. Ext.P5 is the search list and Ext.P6 is the intimation. The accused was arrested, reaching at the Police Station, he registered a crime and Ext.P3 is the FIR. The seized articles were subsequently produced before Court. He also prepared requisition for sending the sample for chemical examination.
Crl.. Appeal No.2245/2005 4
verified the investigation of PW3 and laid charge before Court. The sample was examined in the chemical examiner's lab and obtained Ext.P7 certificate. A perusal of Ext.P7 shows that ethyl alcohol was detected in it. PW1 and PW2, who are independent witnesses, attested Ext.P2 mahazar. PW2 identified MO1 series to MO3 series. Analysing the oral evidence of these witnesses it is true that the prosecution proved the seizure of MO1 to MO3 from the shop. Even though these witnesses were examined, no documentary evidence has been adduced by the prosecution to show the possession and ownership of the house, but in the evidence of PW2, independent witness, it is clear that the appellant is in possession of that shop. There is no reason to disbelieve that version.
5. Section 63 of the Abkari Act reads as follows:
“63. For offences not otherwise provided for:- Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in
Crl.. Appeal No.2245/2005
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this Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both.”
This Court in Raman v. State of Kerala [2007 (4) KLT 223] held that violation of any rule or order made under the Abakri Act can be punished u/s.63 of the Abkari Act. There is no evidence for sale of foreign liquor. The excess quantity of liquor was seized from the shop of the appellant. As per notification, the appellant can possess 1 ½ litres of foreign liquor as per SRO No.127/1999 and this notification was issued as per Section 10 and 13 of the Abkari Act 1077. When any excess quantity is in possession, it is an offence u/s.63 of the Abkari Act. The trial Court failed to appreciate this position.
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Crl.. Appeal No.2245/2005
is sentenced to pay fine of 5,000/- u/s.63 of the Abkari Act,₹
in default of payment of fine, simple imprisonment for three months. The appellant is directed to surrender in the Additional Sessions Court, Fast Track-I, Thiruvananthapuram to undergo the modified sentence forthwith, failing which the learned Additional Sessions Judge shall issue non bailable warrant against the appellant forthwith.
This Crl. Appeal is partly allowed.
P.D. RAJAN, JUDGE.
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Crl.. Appeal No.2245/2005 7
1 issue framed by the court
Whether conviction u/s.55(a) of Abkari Act for possession of excess foreign liquor is sustainable vide notification.
Colour shows how this judgement treated each authority
Raman v. State of KeralaDistinguished¶39
Raman v. State of Kerala [2007 (4) KLT 223]
APPUKUTTAN, S/O.PARAMU
STATE OF KERALA
P.D.RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
