Chalil Parambath Bhaskaran vs State Of Kerala – Excise Inspector on 3 August, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 365 of 2003()


1. CHALIL PARAMBATH BHASKARAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA - EXCISE INSPECTOR,
                       ...       Respondent

                For Petitioner  :SRI.GRASHIOUS KURIAKOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :03/08/2009

 O R D E R
                      M.N. KRISHNAN, J.
                       ---------------------------
                   CRL.A.NO.365 OF 2003
                       ------------------------------
             Dated this the 3rd day of August, 2009

                           JUDGMENT

This is an appeal preferred against the conviction and

sentence passed by the Additional Sessions Judge (Adhoc-I),

Thalassery in S.C.No.199/1999. The accused was charge

sheeted for the offence under Section 55 (a) of the Abkari Act

read with Rule 9 of the Foreign Liquor Rules and he was

convicted and sentenced to undergo S.I for six months and

also to pay a fine of Rs. One lakh and in default to undergo S.I

for a further period of six months.

2. It is the case of the prosecution that on 5.2.1998 at

about 5 p.m the Excise party saw the accused carrying a

plastic bag containing two bottles of 375 ml each, three

bottles of 375 ml each, and six bottles of 180 ml each

containing Whisky and Brandy respectively at Moolakkadavu –

Ponniyam road and therefore has committed the offence under

Section 55(a) of the Abkari Act.

3. The learned counsel for the accused contends before

me that when there is only violation of the foreign liquor

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rules, at the most, the offence that can be attracted will be

Section 63 of the Abkari Act. On the other hand, the learned

Public Prosecutor would contend that a reading of the court

charge would reveal that it is Section 55(i) of the Abkari Act

that will be attracted.

4. I had gone through the seizure mahazer also which

would indicate that the liquor was only permitted to be sold in

the State of Pondicherri. If it is a case, necessarily a proper

charge has to be framed and the accused has to be given

an opportunity to meet the charge. Similarly, the evidence

that has to be tendered should be in the light of the charge

which is properly framed. Now, it is argued that in order to

attract Section 55(a) of the Abkari Act, there must be export,

import, transport or possession and further that possession

must be while illegally transporting. So, it has become

necessary to direct the court below to frame proper charge on

the materials available as contemplated under Section 227 of

the Cr.P.C and then proceed. So, I feel, without framing a

proper charge in the case it may not be possible for the court

or for the accused or even the prosecution to meet it properly.

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Therefore, I set aside the conviction and the sentence

passed and remit the case back to the trial court and start

from the position of framing charge under Section 227 of the

Code of Criminal Procedure and the Sessions Judge is directed

to frame the charge as contemplated under Section 227 of the

Cr.P.C after hearing the accused and the prosecution and then

permit the parties to adduce evidence and dispose of the

matter in accordance with law. For the said purpose, the

conviction and sentence is set aside and the accused and State

are directed to appear before the court below on 18.9.2009.

In case the accused does not appear before the court on

18.9.2009, steps may be taken to summon the accused to

procure his presence for further proceedings.

M.N. KRISHNAN, JUDGE

cl

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M.N. KRISHNAN, J.

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CRL.A.NO.365 OF 2003

——————————

3rd day of August, 2009

JUDGMENT