IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 909 of 2003()
1. RAMU
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :02/12/2010
O R D E R
P.Q.BARKATH ALI, J.
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
Crl.A.No. 909 of 2003
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
Dated this the 2nd day of December, 2010
JUDGMENT
This appeal by the accused is directed against the
judgment of the III Addl. Sessions Judge (Adhoc) (Fast
Track Court No.I), Thrissur in S.C. No.114 of 2002 dated
May 26, 2003 convicting him under section 55(a) of the
Abkari Act and sentencing him to undergo rigorous
imprisonment for one year and to pay fine of Rs.1 lakh, in
default to undergo simple imprisonment for six months.
2. The case of the prosecution as testified by PW1 to
PW5 before the lower court, in brief, is this:- PW1 is the
then Excise Inspector, Pazhayannur Excise Range. PW5 is
the then Preventive Officer of the said Excise Range. On
June 18, 1997 at 5 p.m. he was on patrol duty along with
PW5. When they reached the bus stop at Mayannur, they
saw the accused with a plastic bag. On examination, he was
found in possession four bottles, each containing 750 ml. of
Indian Made Foreign Liquor. He arrested the accused from
CRA 909/2003 2
the spot and prepared Ext.P1 seizure mahazar and Ext.P2
occurrence report. He brought the accused to the office and
registered the case against him.
3. PWs.2 and 3 who are independent witnesses who
allegedly attested the seizure mahazar. PW4 is the Village
Officer who prepared Ext.P6 sketch. The case was
investigated by PW5 Preventive Officer who accompanied
PW1 and after completing the investigation, he laid charge
before committal court, Judicial First Class Magistrate
Court, Wadakkanchery.
4. When the accused appeared before the committal
court, copies of documents relied on by the prosecution
were furnished to him. As the offence under section 55(a) of
the Abkari Act is exclusively triable by a Court of Sessions,
the case was committed to the Sessions Court, Thrissur
from where it was made over to the First Addl. Asst.
Sessions Court, Thrissur and later to the trial court for trial
and disposal.
5. The accused on appearance before the trial court
CRA 909/2003 3
pleaded not guilty to the charge under section 55(a) of the
Abkari Act. PWs.1 to 5 were examined and Exts.P1 to P6
and MOs.1 to 3 were marked on the side of the prosecution.
When questioned under section 313 Cr.P.C., he denied
having committed any offence. No defence evidence was
adduced.
6. On an appreciation of the evidence, the trial court
found the accused guilty of the offence punishable under
section 55(a) of the Abkari Act, convicted him thereunder
and sentenced him as aforesaid. Now the accused has
come up in appeal challenging his conviction and sentence.
7. Heard learned counsel for the appellant and
learned Public Prosecutor.
8. Learned counsel for the appellant argued that the
alleged contraband article seized from the accused was not
Indian Made Foreign Liquor and the allegation was that the
accused was found in possession of 3 litres of Indian Made
Foreign Liquor and hence charge under section 55(a) of the
Abkari Act will not lie against him and that he can at the
CRA 909/2003 4
most be convicted for violation of the provisions of Foreign
Liquor Rules under section 63 of the Abkari Act.
9. Learned Public Prosecutor, on the other hand,
supported the impugned judgment.
10. The following points arise for consideration :
1) Whether search and seizure of Indian Made
Foreign Liquor from the appellant is proved ?
2) Whether the conviction of the appellant under
section 55(a) of the Abkari Act can be
sustained ?
3) Whether the sentence imposed on the
appellant is excessive ?
On the side of the prosecution to prove the search and
seizure of the Indian Made Foreign Liquor from the
appellant, PWs.1 to 5 were examined before the lower
court. PWs.1 and 5 were the then Excise Inspector and
Preventive Officer of Pazhayannur Excise Range. They
testified in a convincing manner regarding the seizure of
the four bottles of Indian Made Foreign Liquor from
accused. I have gone through their evidence. Nothing was
brought out in cross examination to discredit their evidence.
CRA 909/2003 5
No serious discrepancies were pointed out in their
evidence to disbelieve them. Further their evidence is
supported by Exts.P1 to P6.
11. Learned counsel for the appellant argued that
PWs.2 and 3, the independent witnesses, turned hostile and
did not support the prosecution and PWs.1 and 5 are Excise
officials and that therefore the uncorroborated version of
PWs.1 and 5 cannot be believed. There is no substance in
the above contention. It is settled law that evidence of
official witnesses if found reliable can be believed and can
form basis of conviction. In the present case there is
nothing to suspect the credibility of PWs.2 and 3. Therefore,
in my view the trial court is perfectly right in relying on
their evidence regarding the search and seizure of the
contraband articles from the accused and holdingthat the
seizure of the bottles containing liquor from the accused is
proved.
12. The next question for consideration is whether the
accused/appellant has committed any offence under section
CRA 909/2003 6
55(a) of the Abkari Act. In the present case the allegation is
that the accused was found in possession of four bottles
each containing 750 ml. of Indian Made Foreign Liquor.
The incident happened in 1997. During that period the
permissible quantity of Indian Made Foreign Liquor that
can be possessed by a person is 4.5 litres as seen from
S.R.O. No.89/69 issued under G.O.(P) No.82/69/RD dated
19-2-1969, which was reduced to 1.5 litres as per S.R.O.
No.127/99 under G.O.(P) No.22/99/TD dated 5-2-1999. That
being so, in the light of the principle laid down in Mohan V.
State of Kerala (2004(1) KLT 845), the accused can only be
found guilty of violations of sections 10 and 13 of the Abkari
Act for having been in possession of Indian Made Foreign
Liquor in excess of the permissible quantity prescribed
under Government Notification mentioned above, which is
punishable under section 63 of the Abkari Act. Therefore,
the conviction of the appellant under section 55(a)of the
Abkari Act by the trial court is set aside and he is convicted
under section 63 of the Abkari Act.
CRA 909/2003 7
13. As regards the sentence, the maximum sentence
that can be imposed under section 63 of the Abkari Act is a
fine of Rs.5,000/- or imprisonment which may extent to two
years. Taking into consideration the fact that no previous
conviction is pleaded or proved against the appellant and
that the quantity of liquor seized from him only 4 bottles (3
litres) I feel that a sentence of fine of Rs.5,000/-, in default
to undergo simple imprisonment for one month would meet
the ends of justice.
14. In the result, the conviction of the appellant under
section 55(a) of the Abkari Act is set aside and he is
convicted under section 63 of the Abkari Act and sentenced
to pay a fine of Rs.5,000/-, in default to undergo simple
imprisonment for one month. Two months’ time is granted
for payment of fine. His bail bonds are cancelled.
The appeal is allowed in part as found above.
P.Q.BARKATHALI, JUDGE
mn
CRA 909/2003 8
CRA 909/2003 9
P.Q.BARKATH ALI, J.
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~
Crl.A.No. 909 of 2003
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~
JUDGMENT
2-12-2010