Kerala High Court
K. Gangadharan @ Gangan vs State Of Kerala on 29 November, 2012
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 1098 of 2003 ( )
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CRA.181/2001 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA
SC.422/1999 of SUB COURT, VADAKARA
REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.2:
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K. GANGADHARAN @ GANGAN,
S/O. SANKARAN NAIR, @ RAYARAPPAN,
LIJI NILAYAM, P.O. PUTHUR,
VADAKARA.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
SRI.C.B.MUKUNDAN
RESPONDENT/RESPONDENT/COMPLAINANT(S):
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STATE OF KERALA, REPRESENTED
BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV. SMT. SEENA RAMAKRISHNAN - PUBLIC PROSECUTOR.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
acd
S. SIRI JAGAN, J.
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Crl.R.P. No.1098 of 2003
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Dated this the 29th day of November, 2012
ORDER
The petitioner is the 2nd accused in Sessions Case No.422/1999 before the Assistant Sessions Judge, Vatakara. He was prosecuted along with another person for offence punishable under Section 55(a) of the Abkari Act. The prosecution case as contained in paragraph 2 of the judgment of the Magistrate is as follows:
"On 23-4-99 at 5.45 P.M. the accused in this case were found by CW1 and the Police party with him, on the road situated at a distance of about 20 metres north from the north eastern corner of the office room of the Muthappan temple near the Railway Colony at Vatakara and also 15 metres west from the Kottaparamb-Railway Station road at Vatakara. On a search being made, it was found that the accused were keeping in their possession 4 bottles of Golden Star XXX Rum each containing 180 ML and 5 bottles of Extra No.1 Golden Star Brandy each containing 180ML, and 2 bottles of Golden Amber Brandy each containing 350 ML and also one bottle of 180 ML capacity containing full of Crown XXX Rum. The contraband articles recovered from the possession of A1 and A2 were not allowed to be sold in Kerala. The same were transported illegally from Mahe for the purpose of selling the same in Kerala. The accused thereby committed the aforesaid offences."
The prosecution examined PWs 1 to 6 and marked Exts.P1 to P5 Crl. R.P.No.1098/03 2 documents. The defence did not adduce any evidence. After considering the evidence adduced, the Assistant Sessions Judge convicted both the accused and sentenced them to undergo rigorous imprisonment for four years each and to pay a fine of Rs.1 lakh each with a default sentence of simple imprisonment for six months each. Set off was also granted under Section 428 of the Cr.P.C. The petitioner herein challenged the judgments of the Assistant Sessions judge by filing Criminal Appeal No.181/2001 before the Additional District and Sessions Court, Vatakara, which was dismissed confirming the conviction and sentence. The petitioner is challenging the judgments of the courts below.
2. Among other contentions, the petitioner raises a specific contention that Section 55(a) of the Abkari Act is not attracted on the allegations of the prosecution. According to him, there is no allegation that the possession of the liquor by the petitioner is in the course of import, export, transport or transit in violation of the provision of the Act and therefore, Section 55(a) of the Abkari Act is not attracted. According to the petitioner, this position is well settled by the decision of he Division Bench in Surendran v. Excise Inspector [2004(1) KLT Crl. R.P.No.1098/03 3 404], which has been confirmed in Criminal Revision Petition No.220/2001. It is further submitted that even a charge under Section 58 will not lie, since the prosecution has no case that the possession of the liquor by the petitioner is with the knowledge that the same has been unlawfully imported, transported or manufactured or knowing that the duty tax or rental payable under the Act has not been paid thereof. Therefore, the petitioner can neither be prosecuted under Section 55(a) nor under Section 58. If at all, the petitioner can only be made liable under Section 63, which also is very much doubtful. Therefore, the learned counsel for the petitioner argues for acquitting the petitioner.
3. I have heard the learned Public Prosecutor also.
4. As rightly pointed out by the learned counsel for the petitioner, the prosecution has no case that the possession of the liquor by the petitioner is in the course of import, export, transport or transit. No allegations have been made and no evidence had been led also to the effect that the petitioner possessed liquor with the knowledge that it has been illegally imported. Therefore, in view of the decision of the two Division Bench decisions in Surendran's case (supra) and Crl. R.P.No.1098/03 4 Cr.R.P.No.220/2001, the petitioner cannot be prosecuted either for an offence under Section 55(a) of the Abkari Act or under Section 58 of the Abkari Act. But, of course, the bottles seized from the petitioner did not contain the seal of the Beverages Corporation. Therefore it cannot be said that the possession of the liquor by the petitioner is legal. Therefore, at least an offence under Section 63 of the Act is attracted. In the above circumstances, I acquit the petitioner of the offence under Section 55(a) and convict him under Section 63 of the Abkari Act. I sentence him to pay a fine of Rs.5,000/- (Rupees five thousand only). The judgments of the lower courts are modified as above and the Criminal Revision Petition is disposed of.
S. SIRI JAGAN, JUDGE acd Crl. R.P.No.1098/03 5 Crl. R.P.No.1098/03 6