IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 988 of 2002()
1. DOMINIC, S/O. OUSEPH, MANJALI HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.A.C.DEVY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :18/09/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.988 of 2002
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Dated this the 18th day of September, 2007
JUDGMENT
The appellant is the accused who stands convicted for the
offence under Section 55 of the Abkari Act and sentenced to
undergo R.I. for one year and to pay fine of Rs.1 lakh and in
default, to undergo R.I. for three months.
2. The prosecution case is that on 9.10.1997 at 3.30 p.m.
the accused was found carrying 15 bottles of brandy of 375 ml.
each, kept in a carton in a big shopper.
3. The evidence adduced in the matter consisted of the
testimony of PWs’ 1 to 5, Exts. P1 to P5 and MOs’ 1 to 3 series.
4. The prosecution case is that the offence was detected
by PW1, the Sub Inspector of Police, Varandharappally who
arrested the accused and prepared Ext. P1 seizure mahazar. He
has testified as to the incident. Three bottles were taken as
sample. One of the sample was taken forwarded for chemical
analysis and as per Ext. P4 report of the chemical analyst the
sample contained 43.58% by volume of ethyl alcohol. In Ext. P1
Crl.A.988/02 Page numbers
it is mentioned that the carton contained the printing of Kerala
Alcoholic Products Ltd. It is also mentioned that the bottle
contained Indian made foreign liquor. It was sealed bottles and
had labels. PWs’ 2 and 3, the Police Constables, were
accompanied by PW1 have testified in the same terms as PW1 as
to the recovery and the preparation of Ext. P1 seizure mahazar,
and also identified MOs’. PW4, the independent witness, has
admitted the signature in Ext. P1 seizure mahazar but he did not
support the prosecution. PW5, the another independent witness
has also turned hostile. I find that in view of the evidence of
PWs’ 1 to 3 the detection stands proved. The evidence of PWs’ 1
to 3 did not contain material contradictions or inconsistencies.
The quantity ceased amounted to 5.65 litres of Indian made
foreign liquor.
5. Counsel has relied on the decision in Sabu vs. State
of Kerala (2003(2) KLT 173) wherein this court has held that
the only offence is that the accused is in possession of excess
quantity of Indian made foreign liquor then permissible under
law. The offence under Section 63 will be attracted. In the
present case, I find that there is no contention for the
Crl.A.988/02 Page numbers
prosecution that the liquor ceased is illicit liquor. Hence, I find
that the only offence attracted is that under Section 63 of the
Abkari Act. In the circumstances, the conviction is liable to be
converted into one under Section 63 of the Abkari Act. Hence,
the conviction under Section 58 is herewith set aside. The
accused is sentenced to pay a fine of Rs.5,000/- for the offence
under Section 63 of the Abkari Act and in default, to undergo
simple imprisonment for one month.
The criminal appeal is disposed of accordingly.
K.R.UDAYABHANU,
JUDGE
csl