Kerala High Court
Dharmapalan vs State Of Kerala on 23 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938
Crl.Rev.Pet.No.18 of 2006 ( )
-------------------------------
AGAINST THE JUDGMENT IN CRA 127/2001 of I ADDL. SESSIONS JUDGE,
KOLLAM DATED 23-06-2005
AGAINST THE JUDGMENT IN CC 929/1996 of J.M.F.C.-I, KOLLAM
DATED 18-06-2001
REVISION PETITIONER/APPELLANT/ACCUSED:
---------------------------------------------------
DHARMAPALAN, S/O.MADHAVAN,
PUTHEN VEEDU, PERINADU VILLAGE,
KUZHIYAMCHERRY, KOLLAM TALUK.
BY ADV. SMT.M.MEENA JOHN
RESPONDENT/RESPONDENT/COMPLAINANT:
-------------------------------------------------
STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
(CRIME NO. 3/96 OF KOLLAM EXCISE RANGE).
R BY SRI.TOM JOSE PADINJAREKKARA, ADDL. DGP.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
23-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
-----------------------------
Crl.R.P.No.18 Of 2006
---------------------------------
Dated this the 23rd day of May, 2016.
O R D E R
The revision petitioner, who is the accused, has preferred this instant Criminal Revision Petition to impugn the legality, correctness and propriety of the impugned conviction and sentence imposed in this case. The prosecution case is that on 15.2.1996 at about 5:45 p.m., the accused was found in possession of 650 ml. illicit arrack along with a glass in the bund near the pathway which leads from cashew nut factory to Ambedkar Colony through the Perinadu Gramodharana Kashaya Hospital and had committed the offence under Sec.58 of the Abkari Act. According to the prosecution case, the above said 650 ml. bottle found in the accused's possession as well as two other bottles of 750 ml. each containing illicit arrack found in the near vicinity, were duly recovered by them as per Ext.P-2 mahazar prepared by PW-3, the Excise Inspector, and that the execution of the said mahazar was witnessed by independent witnesses, viz., PWs-4 & 5. That those bottles were duly forthwith sealed and were forwarded to the competent criminal court on the next day, viz., 16.2.1996 at 8:20 a.m. and ::2::
Crl.R.P.No.18 Of 2006 requisite permission was obtained from that court by which requisite sample of seized liquor was sent to the Chemical Examiner to Government, who issued Ext.P-4 Chemical Analysis Report dated 10.2.2000 in which it was certified that the three bottles contained Ethyl Alcohol with requisite percentage of volume by Ethyl Alcohol, etc. It is common ground that the specific and only charge raised against the petitioner was in respect of offence under Sec.58 of the Abkari Act.
PWs 1-5 were examined for prosecution out of which PWs 1-3 were official witnesses and PWs 4 & 5 are independent mahazar witnesses who turned hostile but admitted their signatures in the mahazar.
2. The trial court concerned, viz., Judicial First Class Magistrate Court-I, Kollam, by the impugned judgment rendered on 18.6.2001 in Calendar Case, C.C.No.929/1996 had convicted the petitioner/accused of the offence under Sec.58 of the Abkari Act and had sentenced him for six months' simple imprisonment and a fine of Rs.15,000/- was imposed in default of which simple imprisonment for one month was ordered. The accused challenged the said conviction and sentence by preferring Crl.A.No.127/2001 before the 1st Additional Sessions Court, Kollam, and the said appellate court rendered the impugned judgment on 23.6.2005 whereby the impugned conviction ::3::
Crl.R.P.No.18 Of 2006 and sentence imposed by the trial court was affirmed. The accused has preferred the instant Criminal Revision Petition for impugning the legality, propriety and correctness of the aforesaid impugned conviction and sentence imposed on him.
3. Heard Smt.M.Meena John, learned counsel appearing for the revision petitioner/accused and Sri.Tom Jose Padinjarekkara, learned Additional DG of Prosecution appearing for the respondent-State.
4. Smt.M.Meena John, learned counsel appearing for the revision petitioner has raised the following contentions, viz., (1) that there was undue delay on the part of the prosecution in forwarding the seized bottles to the competent criminal court and therefore such unexplained and unreasonable delay cannot be the basis for a safe justification for the impugned conviction and sentence; (2) that the impugned seizure as reflected in Ext.P-4 cannot be the credible and safe basis for sustaining the impugned conviction in as much as the independent witnesses have turned hostile and had deposed before the trial court that the seizure was not effected in their presence and that their signature was collected later by the prosecution officials. (3) The last contention is that in view of the consistent rulings rendered by this Court, as there is no specific charge and proof that the possession of the ::4::
Crl.R.P.No.18 Of 2006 illicit arrack was coupled with actual knowledge on the part of the accused that such arrack was illicitly manufactured, transported or imported, etc., the conviction under Sec.58 of the Abkari Act is unlawful. It is also consequently contended that as there are no charges against the petitioner that the possession of the alleged illicit arrack was in the course of import, export, transport or transit of such liquor as envisaged in Sec.55(a) of the Act, no conviction under Sec.55(a) of the Act is also legally permissible in this case and moreover, as the punishment envisaged for Sec.55 is of a higher degree as that of the one envisaged for the charged offence under Sec.58 of the Act and as there are no charges against the petitioner for the alleged contravention of Sec.55(a) of the Act, conviction in this regard is absolutely impermissible in law. It is also contended that as the amendment Secs.3 & 8 of the Abkari Act was even initially brought into force only on 3.6.1997, the petitioner cannot be convicted even for the alleged contravention of the unamended Sec.8 of the Abkari Act (which came into force on 3.6.1997) in as much as the date of occurrence of the alleged offence is prior to that, viz., 15.2.1996 and further that as on the date of the occurrence of the offence on 15.2.1996, there is no other provision in the Abkari Act that has been allegedly contravened in the ::5::
Crl.R.P.No.18 Of 2006 facts and circumstances of this case and therefore, the petitioner cannot be convicted even by roping in Sec.63 of the Abkari Act even in terms of that provision that existed as on the date of occurrence of the alleged offence. On an anxious consideration of the rival pleas in that matter, it is to be noted that the first two contentions of the petitioner are only to be repelled.
5. The date of occurrence of the offence in the instant case is 15.2.1996 at about 5:45 p.m. and the records indisputably would disclose that the seized bottles containing the alleged illicit arrack were forwarded by the detecting officials immediately on the next day morning, viz., 16.2.1996 at 8:20 a.m. to the criminal court concerned and therefore in the facts and circumstances of the case, it cannot be said that there was undue delay or unexplained or unreasonable delay on the part of the prosecution officials in forwarding the seized liquid to the criminal court. Thereafter, the prosecution had obtained due permission from the court below in sending the samples to the Chemical Examiner to Government which has resulted in Ext.P-4 report of the chemical analyst which proved that the seized liquid contained Ethyl Alcohol and therefore the first contention raised by the petitioner is only to be overruled as untenable. As regards the second contention ::6::
Crl.R.P.No.18 Of 2006 of the petitioner regarding the acceptability or otherwise of Ext.P-2 seizure mahazar, it is no doubt true that both the independent witnesses PWs 4 & 5 were declared hostile and that they have deposed that they have not witnessed the mahazar but they have clearly admitted the signature in the mahazar. The official witnesses PWs 1 to 3 have clearly deposed regarding the factum of seizure and both the courts below were fully satisfied that the evidence tendered by them were true and correct. So, the only limited question for consideration before this Court is as to whether the mere fact that both the independent witnesses who were cited to prove the seizure mahazar have turned hostile would by itself lead to a situation of total unacceptability of the seizure. It is to be noted that this Court has consistently taken the view that the mere fact that the mahazar witnesses in Abkari cases have turned hostile is not a reason to discard the evidence of official witnesses. This Court in the ruling in the case Biju @ Sasi v. State of Kerala reported in 2011 KHC 749 = 2011 (4) KLJ 76 has held that the mere fact that the independent witnesses chose to betray the prosecution cannot over turn the prosecution case since the propensity for independent witnesses to turn hostile in such cases; especially in abkari cases has become the order of the day and the fact that the prosecution witnesses did sign the search ::7::
Crl.R.P.No.18 Of 2006 list prepared contemporaneously is a strong circumstance to hold that they were in fact present at the time and place of detection of the crime and they shifted their loyalty to the accused, for obvious reasons. But, that fact by itself is not a reason to discard the evidence given by the official witnesses and the contemporaneous record and materials collected during the search conducted, etc. In the light of the rulings as in the case Biju @ Sasi's case (supra), this Court has no hesitation to hold that the mere fact that the independent witnesses have chosen to backtrack from the prosecution case will not result in a situation overturning the veracity of the prosecution case, etc. It is also pertinent to note in this context that this Court in the case Purushothaman v. State of Kerala reported in 1989 (1) KLT 521 = 1989 (1) KLJ 340 = 1989 KHC 127 (para 4) has held that the purpose in collecting such signatures is to give assurance to all concerned that contemporaneous records have been prepared truly and correctly. In the light of the aforesaid ruling, this Court has no hesitation to hold that the second contention of the petitioner is bereft of any merit and stands overruled as unsustainable.
6. Now, the crucial issue is as to the aspects borne out by consideration of the last contention of the petitioner. A learned Single ::8::
Crl.R.P.No.18 Of 2006 Judge of this Court in the case in Rajeevan v. Excise Inspector reported in 1995 (1) KLT 38 has held that Sec.58 deals with "possession of illicit liquor" or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and that is made punishable and that on a plain reading of Sec.55 of the Act it is clear that whoever in contravention of the Act or any rule or order made thereunder or of any licence or permit obtained under the Act "imports", "expors" and incidental thereto "transports, transits or possesses" liquor or any intoxicating drugs, commits an offence and on conviction is liable to punishment as prescribed. It is such possession of liquor in connection with or in the course of import, export or movement from one State to another state or territories of this state, which is made penal under Sec.55(a). Now coming to the considered view taken in Rajeevan's case (supra), the learned Single Judge found therein that the words "transport, transit or possess" in sub clause (a) of S.55 were substituted by Act 10 of 1975, with the object of regulating movements of liquor and intoxicating drugs throughout the State and para 4 of the said ruling in Rajeevan's case (supra) reads as follows:
'4.There is indeed some confusion as to the scope of the above two provisions in Chapter IX of the Abkari Act, which provide for penalties. The ingredients and scope of the sections are indeed different. S.55 starts with the heading "for illegal import etc."
::9::
Crl.R.P.No.18 Of 2006 and (a) states:
"Whoever in contravention of this Act or of any rule or order made under this Act or of any licence or permit obtained under this Act.
a) imports, export (transports, transits or possesses) liquor or any intoxicating drug;"
On a plain reading of the section it is clear that whoever in contravention of the Act or any rule or order made thereunder or of any licence or permit obtained under the Act "imports", "export" and incidental thereto "transport, transits or possesses" liquor or any intoxicating drugs, commits an offence and on conviction is liable to punishment as prescribed. It is such possession of liquor in connection with or in the course of import, export or movement from one State to another state or territories of this state, which is made penal under S.55(a). S.58 deals with "possession of illicit liquor" or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and that is made punishable. The words possesses-possession used in these sections are in different contexts as is quite obvious.' In the case in Purushan v. State of Kerala reported in 2002 (2) KLT 661, a learned Single Judge of this Court, after taking note of the observations in Rajeevan's case (supra), held that the words "transport, transit or possesses" were not substituted in Sec.55(a) by Act 10 of 1975 and that in that section as it originally stood the words "imports, exports or transports or possesses" were already there and that only the word "transit" was inserted by Amendment Act 10 of 1975 in between the words "transports or possesses". Except making the said observation regarding the addition of the word "transit" as per the Amendment Act 10 of 1975, no other distinction was made in Purushan's case (supra) from the aforestated considered view rendered in Rajeevan's case (supra). So, the consistent view taken by this Court both in Rajeevan's ::10::
Crl.R.P.No.18 Of 2006 case (supra) and Purushan's case (supra) was that the possession envisaged in Sec.55(a) of the Act should necessarily be in the course of import, export transport or transit and thus possession by itself or possession simplicitor, in the absence of the allegation that such possession has taken place in the course of import, export, transport or transit was not a culpable criminal offence as contemplated under Sec.55(a) of the Act. This Court in Purushan's case reported in 2002 (2) KLT 661 has held in para 6 thereof as follows:
"6. I have seen the amendment of 1975. What is introduced through the amendment is only the word 'transit' in S. 55 in between the words 'transports or possesses'. Even under the Act as it originally stood, the words 'imports, exports, transports or possesses' liqour were already there. The question will then arise how and why possession of liquor is made liable to different punishments under Ss. 55(a) and 58. I am of the view that the answer can be got by a careful reading of the sections as it originally stood. The word 'possesses' appearing in S. 55(a) comes in the context of the preceding words 'imports, exports and transports'. What is contemplated there is possession in the course of the said activities. The heading given to the section itself reads as 'for illegal import, etc.'. The higher punishment contemplated in S. 55(a) obviously is taking into account the fact that possession of liquor intended there is in the course of the activities mentioned earlier viz., imports, exports and transports. On the other hand, in S. 58, the possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. What is the distinguishing factor is that for the offence under S. 58, the person in possession has knowledge of the fact that the liquor was unlawfully imported, transported or manufactured or is knowing that the duty, tax or rental payable under the Act had not been paid. The possessor therein is not directly involved in the process of import, export or transport and all that he knows at the time of holding possession of the liquor is the fact that the liquor had not come through genuine source, but it had already been unlawfully imported, manufactured or transported. It is such possession that is made liable to a lesser punishment under S.
58. The Court has therefore to carefully analyse the pleading in the complaint as also the evidence adduced to see whether the possession in question was in the course of ::11::
Crl.R.P.No.18 Of 2006 import, export, transport (or transit in the case of offence after the amendment) or whether it was merely with the knowledge that somebody else had imported, transported or manufactured the same some time back or knowing that duty, tax or rental payable under the Act had been evaded."
7. However, it is to be noted that earlier a different note was struck by this Court in the ruling in Meenakshi v. Excise Circle Inspector reported in 1995 (1) KLT 738. A learned Single judge of this Court held in paras 8 & 9 thereof that mere possession of liquor or any intoxicating drug in contravention of the Act or of any rule or of any licence by itself is an offence under Sec.55(a) of the Act and that such possession need not be in the course of export, since exporting liquor or any other intoxicating drug is a specific offence under that clause. It was held by a learned Single Judge of this Court in Meenakshi's case (supra) that the words "transports, transits and possesses" appearing in Sec.55(a) of the Act do not in any way qualify or modify the word "export" and each of these words is an independent act made punishable as such and that the amendment Act 1975 was necessitated only because of the absence of the word "transit" on account of which movements of liquor or intoxicating drugs from one place in a neighbouring State or Union Territory to another place in that State of Union Territory through the territories of State of Kerala could not be regulated, etc. In view of this ::12::
Crl.R.P.No.18 Of 2006 divergent position, the Division Bench of this Court in the case Surendran v. Excise Inspector reported in 2004 (1) KLT 404 has held that if the view of the learned Single Judge rendered in Meenakshi's case (supra) is accepted, then the result would be that when a person is in possession of liquor with the knowledge that it has been unlawfully imported, transported, manufactured or that duty, etc., has not been paid, the sentence would be less while in a case where there is mere possession without any knowledge of any other illegality, the resulting sentence would be higher. The Division Bench in Surendran's case (supra) held that the court cannot attribute such an intention to the Legislature and as the innocent possession cannot be a more serious offence than possession with the knowledge of illegal import, etc., and therefore it has to be construed that the case shall fall within the ambit of Sec.55(a) (which involves higher punishment compared to Sec.58) only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods and in case the possession is with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of Sec.58 of the Act, etc. The said view taken by the Division Bench in Surendran's case (supra) was fully approved by yet another Division ::13::
Crl.R.P.No.18 Of 2006 Bench ruling of this Court in the case in Mohanan v. State of Kerala reported in 2007 (1) KLT 845. Later, a learned Single Judge had, in the case in Josekutty v. State of Kerala (Crl.R.P. No. 220 of 2001), had referred these questions arising out of the aforestated rulings for consideration of the Division Bench. The Division Bench in the case in Josekutty v. State of Kerala reported in 2013 (1) KHC 241, has fully concurred with the views taken by the earlier Division Benches in Surendran's case (supra) and Mohanan's case (supra) and also had approved the views taken by the rulings of the learned Single Judges in Rajeevan's case (supra) and Purushan's case (supra). It was held in Josekutty's case (supra) that there is no necessity to reconsider the earlier Division Bench rulings. The Division Bench in Josekutty's case (supra) had also fully affirmed the view taken by the ruling of a learned Single Judge of this Court in an unreported judgment dated 18.06.2010 in Crl.R.P.No.1674/2002. In Josekutty's case (supra), the Division Bench after placing reliance on the ruling in Crl.R.P.No.1674/2002 held that the offence under Sec.55(a) of the Abkari Act will lie only if the charge and the evidence adduced therefor must be for possession of liquor in the course of import, export, transport or transit of illicit liquor or intoxicating drug in contravention of the provisions of the Act and ::14::
Crl.R.P.No.18 Of 2006 Rules, etc., and where the charges is one limited to mere possession of illicit liquor in contravention of the Act or Rule or Order made under the Act, the accused cannot be roped in for the offence under Sec.55(a), so long as there are no charges and proof that such possession was in the course of import, export, transport or transit of the liquor, etc. It was also held that so long as there are no charges that such possession was coupled with the knowledge on the part of the accused that such liquor was unlawfully imported, transported or manufactured, etc., the accused cannot be convicted for the offence under Sec.58 of the Abkari Act. It may be noted that the date of commission of the alleged offence in Crl.R.P.No.1674/2002 was on 19.05.1997 and it was found by this Court in that ruling that Sec.64 has no application. That if presumption under Sec.64 could be drawn, it may be possible to sustain the prosecution. But, in a case where Sec.64 has no application, as it stood then, the amendment that was subsequently introduced in Sec.64 was only on 03.06.1997. It has been noted that the date of commission of the offence in that case was on 19.05.1997 and therefore this Court held in Crl.R.P.No.1674/2002 that even Sec.64 has no application in that case. Then the only question that arose for consideration in that case was as to whether the accused therein could be convicted under ::15::
Crl.R.P.No.18 Of 2006 Sec.63 which envisages that whoever is guilty of any Act or intentional omission in contravention of any provisions of that Act or of any Rule or order made under the Act and not otherwise provided for in the Act, could be punished by invoking Sec.63. By amendment Act 4 of 1996 which came into force on 27.03.1996, clause (6A) was inserted in Sec.3, immediately after clause 6, for providing for definition of arrack and Sec.8 was also inserted as per that amendment effective from 27.03.1996, providing prohibition of manufacture, import, export, transport, transit, possession, storage and sale of arrack. As per that provision made effective from 27.03.1996, under Sec.8, no person shall manufacture, import, export, transport, transit, possess, storage, distribute, bottle or sell arrack in any form. It was only by amendment Act 16 of 1997, which came effective from 03.06.1997, sub-section 2 was introduced to Sec.8 after renumbering the original Sec.8 as sub-
section 1 of Sec.8 providing for a specific punishment for contravention of sub-section 1 of Sec.8. Hence, before 03.06.1997, no specific punishment was provided for contravention of the provisions in Sec.8 as it then stood effective from 27.03.1996 and therefore the contravention of Sec.8 from 27.03.1996, but prior to 19.05.1997 could be dealt with for punishment as envisaged in Sec.63. In that view of the ::16::
Crl.R.P.No.18 Of 2006 matter as the date of commission of the offence was on 19.05.1997, (which is after the introduction of the original Sec.8 with effect from 27.03.1996, but before the amendment of that Sec.8 effective from 3.6.1997), this Court in Crl.R.P.No.1674/2002 found that the petitioner/accused therein could not be convicted either for the offence under Sec.55(a) of the Act or under Sec.58 of the Act, but could be punished for Sec.63 of the Act for contravention of the original Sec.8 of the Act. Sec.63 was amended for providing higher punishment only with effect from 03.06.1997 and prior to that the punishment as envisaged in Sec.63 could only be a fine which may extend up to Rs.
2,000/- and therefore this Court in Crl.R.P.No.1674/2002 had convicted the accused therein for the offence under Sec.63 of the Abkari Act and sentenced him to a fine of Rs.2,000/- and in default thereof it was ordered that he should suffer simple imprisonment for one month, etc. Following the view taken in Crl.R.P.No.1674/2002, the Division Bench in Josekutty's case (supra) also held that the accused therein could not be convicted for the offence under Sec.55(a) of the Act as there was no charge therein that the said possession was in the course of import, export, transport, transit of such illicit liquor and that the accused therein could also not be convicted for the offence under Sec.
::17::
Crl.R.P.No.18 Of 2006 58 of the Act as there was no charge against him that such possession was coupled with knowledge on his part that the said liquor possessed by him was one that was unlawfully imported, exported or manufactured for which tax has not been paid, etc. However, the Division Bench therein found that the accused therein could be convicted for the offence under Sec.63 for contravention of Sec. 8 of the Abkari Act as it stood prior to the amendment made effective from 19.05.1997, for contravention of Sec.8 of the Act, as it was enacted effective from 27.03.1996 and had sentenced the accused therein to a fine of Rs.2,000/-.
8. The upshot of the above discussion is that conviction under Sec.58 of the Abkari Act can be sustained if and only if the specific charges as well as the evidence adduced in the case is one in which it is found that the possession of the illicit liquor is coupled with the knowledge on the part of the accused that the said liquor was unlawfully imported, transported or manufactured or knowing that the duty or tax payable therefore was not paid, etc. The conviction under Sec.55(a) could be sustained only if the charges and the evidence therefor is one which should disclose that the possession of such liquor as envisaged in that provision is one which is specifically in the context ::18::
Crl.R.P.No.18 Of 2006 of import, export, transport or transit of liquor or intoxicating drugs, etc. In the instant case, there are no charges or evidence adduced against the petitioner/accused that the possession of the illicit arrack was coupled with the specific knowledge on his part that the said liquor was unlawfully imported, transported or manufactured, etc., as envisaged in Sec.58 of the Act. For these reason alone the impugned conviction and sentence imposed on the petitioner/accused as per the impugned judgments for the offence under Sec.58 is illegal and unlawful and is liable to be interfered with by this Court in this revisional proceedings. So also there are no charges or evidence adduced in this case that the possession of the arrack by the accused was in the context of import, export, transport or transit of liquor as envisaged in Sec. 55(a) of the Act. Moreover, the punishment envisaged for the contravention of Sec.55 of the Act is much higher compared to the offence under Sec.58 for which alone the petitioner has been charged in the instant case. Therefore, there is no question of convicting and sentencing the petitioner for the offence under Section 55(a) of the Act.
9. The remaining question is as to whether the petitioner can be convicted for the offence under Sec.63 of the Act. In this regard, the ::19::
Crl.R.P.No.18 Of 2006 crucial issue to be examined is as to whether or not the accused has, on the date of the commission of the offence (15.02.1996) has contravened any other provisions of the Abkari Act for which punishment has not been specifically provided for in the Act. Sec.63 as it stood at the relevant time reads as follows:
"63. For offences not otherwise provided for :- Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, and not otherwise provided for in this Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine which may extend to [two thousand rupees]."
(It may be noted that subsequently with effect from 03.06.1997, the punishment as envisaged in Sec.63 of the Act has been enhanced to a fine which may extend up to Rs.5,000/- or with imprisonment for a term which may extend to two years or with both.]
10. But, the said amended provision is not applicable in the instant case as the date of commission of the offence (15.02.1996) was prior to the said amendment. Now, it may be examined as to whether the petitioner can be roped in for the offence envisaged in Sec.63 for the contravention of Sec.8 which deals with possession of arrack. Sec.8 as it originally stood was introduced for the first time only as per Act 4 of 1996 which came into effect only on 27.03.1996 and Sec.8 provided as follows:
::20::
Crl.R.P.No.18 Of 2006 "Section 8 :- Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc of the arrack : - No person shall manufacture, import, export, transport, transit, possess, store, distribute, bottle or sell arrack in any form."
[It may be noted that Sec.8 was amended with effect from 03.06.1997 by providing a specific punishment for such contravention by introducing sub-section (2) to Sec.8. The said amendment is not attracted in the instant case].
11. It may be seen that as the date of commission of offence was on 15.02.1996, there is no question of the petitioner's contravention, even of the original Sec.8 as the same was enacted for the first time only on 27.03.1996, which is after the date of the commission of the offence on 15.02.1996. Though the official witnesses have stated that they have found the accused pouring the liquid into a glass in order to supply to another, there are no specific charge or evidence that the accused was conducting any sale as envisaged in Sec.55(i) or Sec.12(1) of the Act. As there are no charges or proper evidence in the matter of sale, petitioner cannot be roped in for the offence under Sec.63 for the alleged contravention of Sec.12(1) of the Act also. The prosecution could not pinpoint any other provisions of the Abkari Act which the petitioner has allegedly contravened by virtue of ::21::
Crl.R.P.No.18 Of 2006 the alleged act, for which no other punishment has been expressly provided so as to rope in the petitioner for conviction under Sec.63 of the Act. It may also be noted that prior to 01.04.1996, sale and consumption of arrack was a permissible and licenced activity and it was only with effect from 01.04.1996 that the State of Kerala had promulgated a new policy decision so as to prohibit the same and trade in arrack. This was initially as per an executive order in G.O.(MS).No. 285/95/TD, dated 20.12.1995, issued by the Government of Kerala in the Taxes Department which reads as follows:
"Government are pleased to order that all arrack shops in the State will stand abolished from 01.04.1996. All cases taken against persons involved in agitations for the closure of arrack shops will be withdrawn.
The Labour Commissioner will examine the problems pertaining to the retrenchment of the workers of these arrack shops and their proper rehabilitation."
12. It is much later that the necessary statutory amendments were incorporated in the Abkari Act as discussed earlier herein above. Even a bare perusal of the executive order in the G.O. dated 20.12.1995 revealed that the formal prohibition and abolition of arrack shops was from 01.04.1996. It appears that prior to 01.04.1996, possession of arrack of the permitted quantity by itself may not have been prohibited. The prosecution has no case that the petitioner/accused has violated any notification issued by the Government under Sec.13 of the Abkari Act ::22::
Crl.R.P.No.18 Of 2006 which prescribes the maximum permissible quantity of arrack that could be possessed by a person prior to 01.04.1996. The specific charges against the accused was only in relation to possession of one bottle of 650ml containing arrack. Though the prosecution witnesses have deposed that two other bottles of 750ml each were also found in the immediate vicinity which are also seized along with the first bottle, this Court need not go into any finer necessities in that regard as the specific charge is only that the accused was in possession of the 650ml. bottle of arrack. From across the Bar, it is submitted that the notification in this regard that was in vogue immediately prior to 01.04.1996 had permitted a person to possess arrack up to a maximum quantity of 750ml. As the specific charge raised against the petitioner was only that he was found to be in possession of a bottle of 650ml of arrack, there may not have been any contravention of any such prescription so as to warrant the alleged contravention of Sec.13 of the Abkari Act (which prescribes possession of liquor or intoxicating drugs in excess of the quantity prescribed by the Government, etc.) so as to rope in the petitioner for the punishment under Sec.63 of the Act. At any rate, as the prosecution has not produced any credible documents before the trial court to place reliance on any such statutory ::23::
Crl.R.P.No.18 Of 2006 notifications in relation to Sec.13 of the Act, this Court need not go any further and it is only to be held that no conviction is sustainable even under Sec.63 of the Act. Accordingly, it is only to be held that the petitioner cannot be lawfully convicted either for the charged offence under Sec.58 of the Act or under Sec.63 of the Act, in the light of the peculiar facts and circumstances of this case. Therefore, this Court is constrained to set aside the impugned conviction and sentence imposed on the petitioner as per the impugned judgments of the aforestated Courts below. Correspondingly, it is ordered that the petitioner stands acquitted for the offences alleged against him and is set at liberty and it is ordered that the bail bonds executed by the petitioner before the trial court stand cancelled.
In the light of these aspects, the revision petition stands allowed.
ALEXANDER THOMAS, Judge.
bkn/DMR