IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 993 of 2002()
1. B.BALAKRISHNAN,
... Petitioner
Vs
1. THE EXCISE INSPECTOR,
... Respondent
2. STATE REP. BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.M.JAMES
Dated :02/03/2007
O R D E R
J.M.JAMES, J.
- - - - - - - - - - - - - - - - - - - -
Crl.A. No. 993 of 2002
- - - - - - - - - - - - - - - - - - - -
Dated this the 2nd day of March, 2007
J U D G M E N T
PW.1, the preventive officer of Kumbla Excise Range,
and party, detected the appellant, the accused, in Sessions Case
No.526/1999 on the file of Additional Sessions Court (Ad hoc-I),
Kasaragod, standing with MO.5 plastic bag at Kumbla bus stand
waiting shed, Kasaragod, on 12/12/1997, at about 8.50 a.m..
MO.5 plastic bag was seized by PW.1 and, on examination, it was
found containing six bottles of Boss whisky, each bottle of
750 ml., and three bottles of Royal Oak Fine whisky, each bottle
of 375 ml. Exhibit P1 occurrence report was prepared by PW.1
and samples were taken from both brands. Exhibit P4 is the
chemical analysis report. It was found containing ethyl alcohol
in different volume. Therefore, PW.3, the Excise Inspector, had
filed the final report on completion of the investigation.
2. The prosecution examined three witnesses and
marked four documents together with five material objects
which were identified. On appreciation of the evidence, the
Crl.A.No.993/2002
2
learned Additional Sessions Judge found the accused guilty and,
therefore, convicted and sentenced him to undergo rigorous
imprisonment for four years and also to pay a fine of rupees one
lakh, in default to undergo rigorous imprisonment for one year.
The same is under challenge through this appeal by the
convicted accused.
3. When the appeal came up for consideration, the
learned counsel for the appellant-accused submitted that, out of
the six bottles of Boss whisky, sample of 300 ml alone was taken
and the balance was produced before the court, as could be seen
from MO.4. Thus, the entire seized bottles of Boss whisky had
not been subjected to chemical analysis, to establish that they
are liquor and hence was in excess quantity, possessed by the
appellant. Similarly, it is also contended that out of three bottles
of Royal Oak Fine whisky, one bottle of 300 ml alone were found
having sent for chemical analysis, as is found in Exhibit P4
chemical analysis certificate. The total quantity thus seized,
though comes to 5.625 litres, the chemical analysis report reveal
that only 600 ml of liquor alone was established as having
possessed by the accused appellant. Hence, in view of the legal
Crl.A.No.993/2002
3
principle laid down in Krishnankutty vs. State of Kerala
[2005(3) KLT 568], the prosecution did not establish that the
petitioner was in possession of the quantity in excess of the
permitted quantity, which was 1.5 litres at the relevant time, as
per the order passed by the Government. I agree with the
arguments advanced by the learned counsel for the appellant
that the prosecution has failed to establish that the appellant
was in possession of liquor, as defined under Section 3(10) of the
Act, and that he was in possession of 5.625 litres of liquor.
4. In the above circumstances, I find that the
conviction and sentence passed by the court below are
unsustainable. Hence, I set aside the impugned judgment as
well as the conviction and sentence. The bail bond executed by
the appellant is hereby cancelled and he is set at liberty
forthwith.
The appeal is allowed as above.
(J.M.JAMES)
Judge
ms
Crl.A.No.993/2002
4
J.M.JAMES, J.
– – – – – – – – – – – – – – – – – – – –
Crl.A. No. 993 of 2002
– – – – – – – – – – – – – – – – – – – –
J U D G M E N T
2
nd
M
arch, 2007