IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1081 of 2002()
1. K. DAMODASRAN, S/O. CHANDU NAIR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. EXCISE INSPECTOR, BADIADKA,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :11/10/2010
O R D E R
K.HEMA, J.
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Crl. R.P. No.1081 of 2002
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Dated 11th October, 2010.
O R D E R
This revision arises from the conviction and sentence
passed against the revision petitioner under Section 58 of the
Kerala Abkari Act (for short, ‘the Act’).
2. According to prosecution, on 29.7.1996 at about 10
a.m., petitioner was found transporting and was in possession of 4
litres of arrack on a public road situated near a check post. PW1,
the Preventive Officer and his party apprehended the accused and
the articles were seized from his possession, in the presence of
independent witnesses. A complaint was filed by the Excise
Inspector under Section 58 of the Act. The Magistrate Court
conducted a trial against petitioner for offence under Section 58
of the Act.
3. The Prosecution examined PWs.1 to 4 and marked
Exts.P1 to P3 and MOs.1 and 2. On an analysis of the evidence on
record, the trial court found that the accused was in possession of
4 litres of arrack and convicted the accused and sentenced him to
undergo rigorous imprisonment for three years and to pay a fine
Crl.R.P. NO.1081/02 2
of Rs.15,000/- and in default to undergo rigorous imprisonment
for three months under Section 58 of the Act. The above
conviction and sentence were challenged in appeal before the
Sessions Court and the court confirmed the conviction and
sentence and dismissed the appeal. This revision is filed
challenging the conviction and sentence.
4. Learned counsel for the revision petitioner argued
that offence under Section 58 of the Act is not attracted in this
case, since the knowledge is not brought out in evidence. It is
also submitted that he cannot be convicted under Section 55(a) of
the Act since at the relevant time, before the amendment in 1997,
offence under Section 55(a) called for more severe punishment
than offence under Section 58. The petitioner can only be
convicted under Section 63 of the Act, since if at all the
possession of arrack with the petitioner is proved, he cannot be
convicted under Section 55(a) of the Act, since the court has
failed to enter a finding that the possession was in the course of
transport etc.
5. Learned Public Prosecutor submitted that there is
no ground to interfere with the findings of fact. It is true that the
Crl.R.P. NO.1081/02 3
trial court found that the accused was found in possession of 4
litres of arrack and he had no explanation to offer for this
possession and therefore, possession simplicitor will not attract
offence under Section 55(a) of the Act, in the light of the
judgment of this Court reported in Mohanan v. State of Kerala
(2007(1) KLT 845). It is also fairly conceded that the requisites
under Section 58 of the Act are also not attracted. The
punishment, which can be awarded under Section 63 at the
relevant period is only fine to the tune of Rs.2,000/-.
6. On hearing both sides and on going through the
judgment and the records in this case, I am satisfied that all what
is proved in this case is mere possession of arrack, to the extent
of 4 litres, by the accused at 10 a.m. on 29.7.1996 and hence, in
the light of the Division Bench decision cited above, offence under
Section 55(a) of the Act will not be attracted. Section 58 also is
not made out, since the requisite knowledge is not alleged or
proved in this case. Nobody has a case that the accused was in
possession of arrack, knowing the same to be unlawfully
imported, transported, manufacture etc., as stated in Section 58
of the Act. The offences not provided for under any other
Crl.R.P. NO.1081/02 4
provisions of the Act can be dealt with under Section 63. At the
relevant time of commission of offence, as per Section 63 of the
Abkari Act, the only punishment which can be awarded is fine of
Rs.2,000/-. Hence, the petitioner is convicted under Section 63 of
the Act and sentenced thereunder.
In the result, the following order is passed :
(i) The conviction and sentence passed against the
revision petitioner under Section 58 of the Abkari
Act are set aside and petitioner is acquitted of the
said offence.
(ii) The petitioner is convicted and sentenced under
Section 63 of the Abkari Act to pay Rs.2,000/- as
fine and in default, he will undergo simple
imprisonment for a period of 15 days.
This revision petition is partly allowed.
K.HEMA, JUDGE.
tgs