IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 657 of 2002()
1. SANTHOSH, S/O.KUTTAPPAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.WILSON URMESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/10/2009
O R D E R
P.Q. BARKATH ALI, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Crl.R.P. No. 657 of 2002
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 22nd day of October, 2009
O R D E R
Revision petitioner is the accused in C.C.No.1023 of 1996 of
Judicial Magistrate of the First Class, Perumbavoor and the appellant in
Crl.A. No. 38 of 2000 of the Addl. Sessions Court, North Paravur. He was
convicted under section 55(a) of the Abkari Act and sentenced to undergo
rigorous imprisonment for one year by the trial court, which was confirmed
in appeal. The accused has now come up in revision challenging his
conviction and sentence.
2. The case of the prosecution as shaped in evidence before the trial
court was that on December 11, 1995 at about 7.30 P.M. the accused was
found carrying five litres of brandy in 5 bottles without having any valid
permit along the road lying in front of the tea shop of one Kuttappan at
Mudakkuzha desom and that thereby committed the offence punishable
under section 55(a) of the Abkari Act.
3. The accused on appearance before the trial court, pleaded not
guilty to charge under section 55(a) of the Abkari Act. PWs.1 to 3 were
CRRP 657/02 2
examined and Exts.P1 to P3 were marked on the side of the prosecution.
When questioned under section 313 Cr.P.C., the accused denied having
been in possession of the liquor. DW1 was examined on his side.
4. The trial court on an appreciation of the evidence, found the
revision petitioner guilty of the offence punishable under section 55(a) of
the Abkari Act, convicted him thereunder and sentenced him as aforesaid.
The lower appellate court confirmed his conviction and sentence. Now the
accused has come up in revision challenging his conviction and sentence.
5. The following points arise for consideration:-
1) Whether the conviction of the revision petitioner under
section 55(a) of the Abkari Act rendered by the trial
court, which was confirmed by the lower appellate
court, can be sustained.
2) Whether the sentence imposed on the revision petitioner
is excessive or unduly harsh?
6. PWs.1 to 3 were examined and Exts.P1 to P3 were marked on the
side of the prosecution before the trial court. PW1 is the then Excise
Inspector of Perumbavoor Excise Range. PW3 is the Preventive Officer who
detected the offence. PWs.1 and 3 testified before the trial court that on
December 11, 1995 at about 7.30 P.M. while they were on patrol duty, they
CRRP 657/02 3
saw the accused having five bottles of brandy. They arrested the accused
form the spot. I have gone through the evidence of PWs.1 and 3. Nothing
was brought out in cross-examination to discredit their evidence. No serious
discrepancies were also brought out. In cross-examination it was not even
suggested to them they have any previous enmity with the accused.
Therefore, in my view the trial court as well as the lower appellate court is
justified in believing their evidence. PW2 is an independent witness to the
arrest and seizure. He turned hostile and did not support the prosecution.
Therefore, evidence of PWs.1 and 3 proves beyond doubt the case of the
prosecution. An attempt was made on the side of the accused by examining
DW1 to show that the revision petitioner/accused was arrested from his
house and that liquor bottle was seized from the plantation which was
owned by one Anandan. Except the version of DW1, there is no evidence to
prove the case of the accused. Therefore, the trial court is perfectly justified
in rejecting the evidence of DW1. For all these reasons accepting the
evidence of PWs.1 and 3 I hold that the prosecution has succeeded in
proving that the accused was found in possession five litres of Indian Made
Foreign Liquor on December 11, 1995 at 7.30 P.M.
7. The next question for consideration is whether the charge under
section 55(a) is sustainable. The incident occurred on December 11, 1995.
CRRP 657/02 4
The revision petitioner was found in possession of five litres of Indian
Made Foreign Liquor. The permissible quantity of liquor that can be carried
by a person during that period was 1 = litres, as seen from Government
Notification No.89/69. That being so, the revision petitioner/accused can be
found guilty of only violation of rules 9 and 11 of the Foreign Liquor Rules
and sections 10 and 13 of the Abkari Act for having been in possession of
Indian Made Foreign Liquor in excess of the permissible quantity
prescribed under Government Notification S.R.O. 89/69, which is
punishable under section 63 of the Abkari Act. That being so, the accused
can only be found guilty of violation of sections 10 and 13 of the Abkari
Act. Therefore, the conviction of the revision petitioner under section 55(a)
of the Abkari Act by the trial court which is confirmed in appeal is set aside
and he is convicted under section 63 of the Abkari Act.
8. As regards the sentence, the maximum sentence that can be
imposed under section 63 of the Abkari Act at that time was a fine of
Rs.2,000/-. Therefore I feel that a sentence of fine of Rs.2,000/-, in default
to undergo simple imprisonment for three months would meet the ends of
justice.
9. In the result, the conviction of the revision petitioner under
section 55(a) is set aside, he is convicted under sections 10 and 13 read
CRRP 657/02 5
with section 63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- ,
in default to undergo simple imprisonment for three months. One month’s
time is granted for payment of fine. His bail bonds are cancelled.
P.Q. BARKATH ALI, JUDGE
mn
CRRP 657/02 6
P.Q. BARKATH ALI, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Crl.R.P. No. 657 of 2002
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
O R D E R
22nd day of October, 2009