IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 305 of 2003()
1. SHANMUGHAN ALIAS RAJAN, S/O.PANHAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.C.S.SUNIL
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/03/2010
O R D E R
P.Q. BARKATH ALI, J.
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Crl.A. No. 305 of 2003 A
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Dated this the 26th day of March, 2010
JUDGMENT
Challenge in this appeal by the accused is to the
judgment of the Addl. District and Sessions Judge (Adhoc),
Fast Track Court No.I, Manjeri dated January 27, 2003,
convicting him under section 55(i) of the Abkari Act and
sentencing him to undergo rigorous imprisonment for a
period of three years and to pay fine of Rs.1 lakh, in default
to undergo simple imprisonment for a further period of two
years.
2. The case of the prosecution, as shaped in evidence,
before the trial court, in brief is this:-
On May 11, 1999 at about 6.15 p.m. PW1, the then
Sub Inspector of Police, Tanur Police Station along with
PW.2 Constable attached to that station were patrolling
near Tirur-Tanur public road, and when they reached
Moolakkal Angadi they found the accused in possession of
Crl.A. No.305/2003 2
two bottles, each containing 375 ml. of Indian Made Foreign
Liquor and another bottle of 375 ml., containing 150 ml. of
Indian Made Foreign Liquor and one glass and two empty
bottles. He was arrested from the spot and the articles were
seized. After completing the investigation charge was laid
before the committal court, Judicial First Class Magistrate,
Parappanangadi.
3. Before the committal court copies of the
documents relied on by the prosecution were furnished to
the accused. As the offence under section 55(i) of the Abkari
Act is triable exclusively by a Sessions Court, the case was
committed to the Sessions Court, Manjeri, from where it
was made over to the trial court for trial and disposal.
4. The accused, on appearance before the trial court,
pleaded not guilty to a charge under section 55(i) of the
Abkari Act. On the side of the prosecution PWs.1 to 5 were
examined and Exts.P1 to P5 and MOs.1 to 5 were marked.
When he was questioned under section 313 Cr.P.C. by the
trial court, he denied the incriminating circumstances. No
Crl.A. No.305/2003 3
evidence was adduced on the side of the defence. The trial
court, on an appreciation of the evidence, found the accused
guilty under section 55(i) of the Abkari Act, convicted him
there under and sentenced him as aforesaid. The accused
has come up in appeal challenging his conviction and
sentence.
5. The following points arise for consideration:-
1) Whether the conviction of the revision
petitioner under section 55(i) of the Abkari
Act the trial court can be sustained.
2) Whether the sentence imposed on the
appellant is excessive or unduly harsh?
6. PWs.1 to 5 were examined before the trial court
and Exts.P1 to P5 and MOs.1 to 5 were marked. PW1 is the
then Sub Inspector of Police, Tanur Police Station. He is the
detecting officer. PW2 is the Constable who accompanied
him. PW3 is the Village Officer who prepared Ext.P3 plan of
scene of incident and Ext.P4 scene mahazar. PW4 is the the
independent witness to the scene mahazar. Ext.P5 is the
Crl.A. No.305/2003 4
Chemical Analyst’s report. MOs.1 to 5 are the articles
allegedly seized from the accused. PW5 is the Investigating
Officer.
7. Learned counsel for the appellant mainly argued
that during the relevant period the permissible quantity of
Indian Made Foreign Liquor that a person can possess was
4.5 litres and the accused was found in possession only 900
ml. of Indian Made Foreign Liquor and that therefore a
charge under section 55(i) of the Abkari Act will not lie
against the accused. There is some force in the above
contention. The offence was detected on 11-5-1999. During
the relevant period the permissible quantity of I.M.F.L. that
can be possessed by an individual was 4.5 litres as revealed
from S.R.O. No.225/1998 dated 5-3-1998. Though it was
alleged that the accused was found selling the liquor, it is
not proved by the prosecution. The learned Public
Prosecutor points out that there is no seal of the Beverages
Corporation on the bottles and that therefore the liquor
seized has to be considered as illicit liquor and that
Crl.A. No.305/2003 5
therefore there is violation of Rule 26 of the Foreign Liquor
Rules, which appears to be correct. Therefore, in my view
charge under section 55(i) of the Abkari Act will not lie
against the appellant and conviction of the appellant under
section 55(i) of the Abkari Act cannot be sustained. That
being so, the appellant has to be acquitted of the charge
under section 55(i) of the Abkari Act and instead he has to
be convicted under section 63 of the Abkari Act for violation
of Foreign Liquor Rules. No other point is argued before
me.
8. Under section 63 of the Abkari Act, the maximum
punishment that can be imposed is fine upto Rs.5,000/- or
imprisonment upto two years or both. Taking into
consideration the fact that he was found in possession of 3
bottles of Indian Made Foreign Liquor, each containing 375
ml., I feel that fine of Rs.1,000/- would meet the ends of
justice.
9. In the result, the appeal is allowed in part. The
appellant/accused is acquitted of the charge under section
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55(i) of the Abkari Act. Instead the appellant is convicted
under section 63 of the Abkari Act and he is sentenced to
pay fine of Rs.1,000/-, in default to undergo simple
imprisonment for one month. One month’s time is granted
for payment of the fine. His bail bonds are cancelled.
Sd/-
P.Q. BARKATH ALI,
JUDGE.
mn
/true copy/
P.S. to Judge.