IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1416 of 2001()
1. MOHANDAS
... Petitioner
Vs
1. CIRCLE INSPECTOR OF EXCISE
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :31/01/2011
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P..No. 1416 of 2001
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Dated this the 31st day of January, 2011
JUDGMENT
Revision petitioner is the accused in C.C. No. 200 of
1997 on the file of the Judicial Magistrate of the First Class-
II, Thamarassery and the appellant in Crl.A.No. 65 of 1999
on the file of the Court of Sessions, Kozhikode Division. He
was convicted under section 58 of the Abkari Act and
sentenced to undergo rigorous imprisonment for six months
and to pay a fine of Rs.15,000/-, in default to undergo simile
imprisonment for two months by judgment dated January 6,
1999. On appeal by the accused, the learned Sessions
Judge confirmed his conviction, but modified the sentence
to rigorous imprisonment for one month and to pay a fine of
Rs.5,000/-, in default to under go simple imprisonment for
two months. The accused has challenged his conviction and
sentence in this revision.
2. The case of the prosecution, as unfolded in
evidence before the trial court, in brief, is this:- PWs.1 and 3
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then Preventive Officers attached to the Excise Circle
Office, Kozhikode. On November 23, 1995 they were on
patrol duty along the road leading from Kuttiery to
Nalukuzhi in Manassery amsom, Thalekkode desom in
Kozhikode Taluk. They found the accused carrying MO1 can
in his hand. On examination it was found that the can
contained three litres of illicit arrack. The accused was
arrested on the spot and the contraband articles were
seized. Sample was taken and sealed and labelled and
Ext.P1 mahazar was prepared in the presence of PW2, an
independent witness. The accused was brought to the
office. PW4, the Excise Circle Inspector recovered the
records and material objects and registered the case
against the accused. On his request the sample was sent for
chemical analysis. Ext.P4 the report showed that the sample
contained 36.41 % by volume of ethyl alcohol. PW4
conducted the investigation and laid the charge before the
trial court.
3. The accused on appearance before the trial court
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pleaded not guilty to the charge under section 58 of the
Abkari Act. PWs.1 to 4 were examined and Exts.P1 and P5
and MOI were marked on the side of the prosecution. When
questioned under section 313 Cr.P.C. by the learned
Magistrate, the accused denied the entire incident. PW4
was recalled at the request of accused and further cross-
examined on the side of the accused.
4. The trial court on an appreciation of the evidence
found the accused guilty of the offence punishable under
section 58 of the Abkari Act, convicted him thereunder and
sentenced him as aforesaid. On appeal by the accused the
lower appellate court confirmed his conviction but modified
the sentence as stated above.
5. Heard learned counsel for the revision petitioner
and learned Public Prosecutor.
6. The following points arise for consideration :-
1) Whether the conviction of the revision
petitioner under section 58 of the Abkari Act
by the trial court, which was confirmed in
appeal by the lower appellate court, can be
sustained ? If not, what is the offence
CRRP 1416/2001 4
committed by the accused ?
2) Whether the sentence imposed on the revision
petitioner is excessive or unduly harsh ?
7. PWs.1 and 3 Preventive Officers have testified in
terms of the prosecution case before the trial court. No
serious discrepancies were brought out during their cross
examination to discredit their evidence. Further their
evidence is supported by Exts.P1 and P4. The learned
counsel for the revision petitioner argued that as
independent witness PW2 turned hostile and did not
support the prosecution case, the evidence of PWs. 1 and 3
being the official witnesses cannot be relied on. There is no
substance in the above contention. It is settled law that the
evidence of official witnesses, if found to be trustworthy and
reliable, can be accepted and can form the basis of
conviction. The trial court as well as the lower appellate
court found their evidence reliable. I have gone through
their evidence. I find no reason to come to a different
conclusion. The evidence of PWs.1 and 3 prove beyond
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doubt the search and recovery of illicit liquor from the
accused. Admittedly, they have no prior acquaintance or
enmity towards the accused to foist a false against him.
Therefore, in my view, the trial court as well as the lower
appellate court are perfectly justified in accepting their
evidence and coming to the conclusion that the accused was
found in possession of illicit arrack as alleged by the
prosecution.
8. The next question for consideration is whether the
accused can be found guilty of the offence punishable under
section 58 of the Abkari Act. The incident happened on
November 23, 1995. At that time arrack was not prohibited.
The permissible quantity of arrack that one can possess
without permit was 750 ml. as per S.R.O. No.89/69, G.O.(P)
No.82/69/RD dated February 19, 1969 issued under sections
10 and 13 of the Abkari Act. Section 58 of the Abkari Act
provides that whoever, without lawful authority, has in his
possession any quantity of liquor or of any intoxicating
drug, knowing the same to have been unlawfully imported,
CRRP 1416/2001 6
transported or manufactured, or knowing the duty, tax or
rental payable under the Act not to have been paid therefor,
shall be punishable as provided therein. It is clear from the
above that mere possession of liquor is not sufficient to
attract an offence punishable under section 58 of the Abkari
Act. He must have been in possession without lawful
authority, knowing the same to be unlawfully imported,
transported or manufactured, or knowing that the duty, tax
or rental payable not to have been paid thereof. In the
present case, the prosecution has no case that the accused
was in possession of the liquor knowing that it was
unlawfully manufactured or he was in possession of the
liquor in the course of import, export or transit. That being
so, the accused cannot be found guilty of the offence
punishable under section 58 of the Abkari Act. The above
position has been made clear by a Division Bench of this
court in Surendran V. Excise Inspector (2004(1) KLT 404).
The principle laid down in the above decision was also
followed by a Single Bench of this Court in Crl.R.P.
CRRP 1416/2001 7
No.1674/2002 by order dated 18-6-2010, a copy of which is
made available to me by the learned counsel for the revision
petitioner. In the light of the principles laid down in the
above mentioned decision in this case, the accused cannot
be found guilty of the offence punishable under section 58
of the Abkari Act.
9. The next question for consideration is what is the
offence committed by the accused. He was found in
possession of arrack in excess of the permissible quantity.
Therefore, he can be found guilty of possession of illicit
arrack in contravention of sections 10 and 13 of the Abkari
Act and the above mentioned notification issued by the
Government, which is punishable under section 63 of the
Abkari Act. Therefore, I set aside the conviction of the
revision petitioner under section 58 of the Abkari Act and
convict him under sections 10 and 13 of the Abkari Act read
with section 63 of the Abkari Act.
10. Next it has to be considered what is the proper
punishment that can be imposed. As I have set aside his
CRRP 1416/2001 8
conviction under section 58 of the Abkari Act and convicted
him under section 63 of the Abkari Act, the sentence
imposed by the trial court, which was modified in appeal by
the lower appellate court, is set aside. He is sentenced to
pay fine of Rs.2,000/-, in default to undergo simple
imprisonment for one month under section 63 of the Abkari
Act. One month’s time is granted for payment of the fine.
His bail bonds are cancelled.
The appeal is allowed in part.
P.Q.BARKATHALI, JUDGE
mn
CRRP 1416/2001 9
P.Q.BARKATH ALI, J.
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Crl.A.No. 1416 of 2001
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JUDGMENT
31-1-2011