IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 2013 of 2003()
1. KUTTAPPAN, AGED 53 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.C.C.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :07/11/2007
O R D E R
K. Thankappan, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl. A. No. 2013 of 2003
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 7th day of November, 2007
JUDGMENT
Accused in S.C.No.200/2002 on the file of the Court of the Addl.
Sessions Judge (Adhoc-I) Thodupuzha is the appellant. He was charge-
sheeted for the offence punishable under section 55(a) of the Abkari Act.
The prosecution allegation against the appellant is that on 18-7-2000 at at
about 6.10 P.M. the appellant was found in unauthorized possession of 23
bottles each containing 375 ml. Aristocrat Brandy at his shop at a place
called Muniyara. To prove the allegation, the prosecution examined
PWs.1 and 4 and Exts.P1 to P5 and MO.I and MO2 series were marked.
When the appellant was questioned under section 313 Cr.P.C.. he denied
the allegation levelled against him and stated that he had not involved in the
commission of the offence as alleged by the prosecution. Relying on the
evidence adduced by the prosecution, the trial court found that the appellant
guilty of the offence punishable under section 55(a) of the Abkari Act and
he was convicted thereunder and sentenced to undergo simple
Crl.A.2013/2003 2
imprisonment for a period of three months and to pay a fine of
Rs.1,00,000/- and in default of payment of fine to undergo simple
imprisonment for three months. The above conviction and sentence
awarded against the appellant are assailed in this appeal.
2. Though various grounds are urged by the the learned counsel for
the appellant, the learned counsel pressed only two grounds. Firstly, it is
contended that the finding of the trial court that the appellant has committed
an offence punishable under section 55(a) of the Abkari Act is not tenable
in the light of two decisions reported in Surendran V.State of Kerala (2004
(1) KLT 404 , Sudhepan @ Aniyan V. State of Kerala (2005(2) KLT (Cri)
631) Secondly, it is contended that even if the evidence of prosecution
witnesses is accepted, the appellant can be punished under section 63 of the
Abkari Act as per decisions reported in Sabu V. State of Kerala (2007(4)
KLT 169) and Mohanan V. State of Kerala (2007(1) KLJ 436).
3. This Court heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The prosecution case is that when the Sub Inspector of Police
conducted a search in the vegetable shop of the appellant, he was found in
unauthorized possession of 23 bottles each containing 375 ml. capacity of
Aristocrat Brandy at his shop. The Sub Inspector of Police after preparing
Crl.A.2013/2003 3
mahzar in the presence of independent witnesses including PW1 taken
sample for analysis. As per Et.P4 certificate, the samples contained 42.46
and 42.33 % of ethyle alcohol. The trial court after accepting the evidence
found that 8.62 litres of Indian Made Foreign Liquor was seized from the
possession of the appellant.
5. In Surendran’s case (Supra) this Court held that the case should
fall within the ambit of section 55(a) only when a person was found to be in
possession of liquor in the course of import, export, transport or transit of
the goods. In Sudhepan’s case (Supra) this Court held that under section 55
(a) of the Abkari Act the prosecution must allege and prove that possession
of the contraband liquor was incidental or in connection with export,
import, transport or transit of liquor. The trial court found that the
prosecution has proved that the appellant was found in possession of 8.62
litres of Indian Made Foreign Liquor which is more than the legally
permissible quantity of Indian Made Foreign Liquor. If that be so, the
principle laid down by this Court in the above two decisions is applicable
in the facts and circumstances of this case. Apart from the above two
decisions, the learned counsel for the appellant relies on a Division Bench
decision of this Court reported in Mohanan V. State of Kerala (2007(1) KLJ
436). In the above decision this Court held that section 55(a) is applicable
Crl.A.2013/2003 4
only when person illegally imports, exports liquor or in possession of liquor
while illegally importing it. The prosecution in this case has not proved that
the possession of the contraband article was incidental or in connection with
export, import, transport or transit of liquor. If that be so, the finding of the
trial court that the appellant has committed an offence punishable under
section 55(a) of the Abkari Act is not sustainable. Hence, the conviction and
sentence ordered against the appellant under section 55(a) of the Abkari Act
are hereby set aside and he is acquitted of the above charge.
6. The evidence of PW3 would show that the contraband article was
purchased from the Kerala State Beverages Corporation and kept in the
shop of the appellant. Under section 11A of the Foreign Liquor Rules, no
quantity of foreign liquor in excess of the quantity as notified by the
Government under sections 10 and 13 of the Abkari Act. Violation of Rule
11-A of the Foreign Liquor Rules can be punished only under section 63 of
the Abkari Act. This question was considered by this Court in a decision of
this Court reported in Sabu’s case (Supra) and held that violation of rules
11 and 11A can be punished only under section 63 of the Abkari Act.
Hence, by applying the principles laid down by this Court in the above
decisions and on accepting the evidence of the prosecution, this Court is of
Crl.A.2013/2003 5
the view that appellant can be punished under section 63 of the Abkari Act
for violation of the Foreign Liquor Rules.
7. The incident happened on 18-9-2000 and the appellant was
found in possession of 8.62 litres of Indian made foreign liquor. It is seen
that the appellant was undergoing imprisonment for more than ten days.
Taking into consideration all these aspects, this Court is of the view that a
fine of Rs.5,000/- and in default to under go simple imprisonment for three
months under section 63 of the Abkari Act will meet the ends of justice.
8. In the circumstances, the appellant is found guilty under section
63 of the Abkari Act and he is convicted thereunder and sentenced to pay
fine of Rs.5,000/- and in default to undergo simple imprisonment for three
months. It is reported that the appellant has already deposited an amount of
Rs.10,000/-. If that be so, the amount in excess of Rs.5,000/- has to be
refunded to the appellant.
With the above modification, the appeal stands dismissed.
K. Thankappan,
Judge.
mn
Crl.A.2013/2003 6
K. Thankappan,J.
- - - - - - - - - - - - - - - -
Crl. A. No. 2013/2003
- - - - - - - - - - - - - - - -
Judgment
7-11-2007