Kerala High Court
Rajan vs State Of Kerala on 14 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937
CRL.A.No. 571 of 2005 (F)
--------------------------
AGAINST THE JUDGMENT IN SC 119/2004 of ADDITIONAL
DISTRICT COURT (ADHOC), FAST TRACK COURT-I, PALAKKAD
DATED 14-03-2005
APPELLANT/ACCUSED:
-----------------
RAJAN,
S/O. VELAYUDHAN,
MANTHURUTHI,
MALAMPUZHA VILLAGE,
PALAKKAD.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.PRASUN.S
RESPONDENT :
------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03-03-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bpr
P.D. RAJAN, J.
----------------------------------------------------
Crl. A. No. 571 of 2005
----------------------------------------------------
Dated this the 03rd day of March, 2016
JUDGMENT
This appeal is preferred by the accused against the conviction and sentence in S.C. No.119/2004 of the Additional Sessions Court Fast Track-I, Palakkad under Section 55(a) of Abkari Act. The charge against the accused is that on 17.11.2000 at 1.30 p.m., the accused was found carrying 6.750 litres of Indian Made Foreign Liquor on the Malampuzha Kava road. He was arrested by the Preventive Officer, Palakkad Excise Range and registered a crime. After completing the investigation, the Excise Inspector, Palakkad Range filed a charge before the Judicial First Class Magistrate Court-III, Palakkad. From there, the case was committed to Sessions Court. Subsequently, it is made over Crl. A. No. 571 of 2005 -2- to Additional Sessions Judge, Fast Track Court-I.
2. During trial, the prosecution examined Pws 1 to 7 and marked as Exts.P1 to P7. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s 313 Cr.P.C. He did not adduce any defence evidence.
3. The learned Additional Sessions Judge convicted the accused under Section 55(a) of Abkari Act and sentenced to simple imprisonment for one year and fine of Rs. 1,00,000/- (Rupees One Lakh only), in default of payment of fine, simple imprisonment for six months. Being aggrieved by that, he preferred this appeal.
4. Heard both sides.
5. Section 63 of the Abkari Act says about the offences Crl. A. No. 571 of 2005 -3- are not otherwise provided which 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 five thousand rupees or with imprisonment for a term which may extend to two years or with both;]".
This Court in Raman vs. State of Kerala [2007 (4) KLT 223] held that the possession of foreign liquor in excess than the prescribed quantity amounts to violation of provisions of the Foreign Liquor Rules and attract punishment under Section 63 of the Abkari Act.
6. In this case, I have examined the prosecution case. The Preventive Officer, Palakkad Excise Range was examined Crl. A. No. 571 of 2005 -4- as PW1 to prove the seizure of foreign liquor. His evidence shows that on 17.11.2000 at 1.30 p.m., while he was conducting petrol duty, he seized 6.750 litres of foreign liquor from the possession of the appellant. On seizure, he detected 9 bottles of 750 ml of Victoria Fine Brandy and he opened one of the bottles and took 300 ml as sample. For that, he prepared Ext.P1 mahazar. The accused was arrested. Ext.P2 is the arrest memo. The specimen impression seal is marked as Ext.P3. The foreign liquor seized was marked as MO1 series and the bag which carrys the foreign liquor was marked as MO2. Subsequently, the accused and the thondy articles were produced before the Excise Circle Inspector, Palakkad.
7. The Excise Guard was examined as PW2, who supported the oral evidence of PW1. PW5, the Excise Circle Crl. A. No. 571 of 2005 -5- Inspector registered Ext.P4 crime and occurrence report. The articles seized were produced before court for sending them to the Chemical Examiner's Laboratory and the samples was also produced before court with forwarding note. After chemical examination, Ext.P6 report was obtained from Chemical Examiner's Laboratory. Ext.P5 is the forwarding note. PW6 prepared Ext.P7 site plan. The independent witnesses PWs 2 and 3 admitted their signature in Ext.P1, but they did not support the seizure. After completing investigation, PW7 laid charge before Court.
8. A close analysis of the above evidence shows that the appellant was in possession of excess quantity of foreign liquor alone. Prosecution has not adduced any evidence to prove that he possessed MO1 for any illegal import, export, transport or transit of the liquor in violation of Abkari Act. Crl. A. No. 571 of 2005 -6- In the absence of such evidence, he committed an offence punishable under Section 63 of Abkari Act alone.
In the result, the conviction and sentence passed by the learned Additional Sessions Judge under Section 55(a) of Abkari Act is set aside and accused is convicted under Section 63 of the Abkari Act and sentenced to pay a fine of Rs. 5,000/- (Rupees Five Thousand only) and in default, to undergo imprisonment for one month. Appellant is directed to appear in the trial court and undergo the modified sentence. This appeal is partly allowed.
Sd/-
P.D. RAJAN
JUDGE
bpr //TRUE COPY//
P.A. TO JUDGE