Abdul Latheef v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2016-07-05
Court Decision / Holding: Conviction under section 55(a) of the Abkari Act is set aside. Since the accused is dead, it is difficult to convict under section 63; the charge is abated and the revision petition is disposed of accordingly.
Final Disposition: Revision petition disposed of; conviction under Abkari Act s.55(a) set aside; charge abated; no conviction due to death.

Parties to the Case

Appellants / Petitioners

Abdul Latheef, S/o. Moosa

Respondents

State of Kerala, rep. by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.K. Vijayan, Advocate

Counsels for Respondents

• Public Prosecutor, SMT. V.P. Sathi

Case Synopsis & Summary

In a Kerala High Court criminal revision, Abdul Latheef challenges the concurrent judgments convicting him under the Abkari Act. On 23 June 1996, about 8 a.m., he was found in possession of 15 bottles of Indian Made Foreign Liquor (Doctors AD Brandy), each 180 ml, on a bus; he was charged under section 55(a) of the Abkari Act. The Additional Chief Judicial Magistrate, Thalassery, convicted him and sentenced him to one year’s rigorous imprisonment and a fine of ₹25,000, with default imprisonment. The Sessions Judge, Thalassery, dismissed the appeal, upholding the conviction. Latheef died during the pendency of the revision; Ext. C1 (death certificate) was produced. The revision court examined Section 394 Cr.P.C. on abatement—appeals abate on death, but there is no explicit provision for abatement of a revision—while noting that near relatives may apply to continue an appeal, if leave is granted. The court observed that after the petitioner’s death, legal heirs were not impleaded, but that is not a bar to continuing the revision. On merits, the evidence showed possession of excess foreign liquor; the court recognized that liability could lie under Section 63 of the Abkari Act, but because the accused was dead, the charge could not be pursued and was abated. Consequently, the conviction under 55(a) is set aside, and the revision petition is disposed of accordingly. Exts. P1–P3 and MO1–MO2 were discussed in the course of these findings.

Provisions of Law Cited

Cr.P.C. Section 394Abkari Act Section 55(a)Abkari Act Section 63Abkari Act Section 53

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that abatement upon the death of the accused is a provision applicable to appeals under the Code and not to revisions; further, near relatives may be allowed to continue the revision with leave of the Appellate Court, and the absence of impleading legal heirs should not bar continuation. The challenge also touches the appropriateness of charging under section 55(a) given the possession of liquor; the counsel seeks to have the revision decided on its merits rather than on procedural technicalities.

Contentions of Respondents

The State, through the Public Prosecutor, argues adherence to applicable abatement principles under Cr.P.C. and contends that the revision could be disposed of in accordance with those provisions. The material facts, including Latheef’s death and the lack of impleadment of legal heirs, are addressed in light of Section 394 Cr.P.C. and the proper application of the Abkari Act provisions, with emphasis on whether the conviction under section 55(a) should stand or be set aside in view of subsequent developments.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Abdulla Kutty v. Station House Officer	2007(4) KHC 907	Positive	Cited to illustrate that liability under section 63 of the Abkari Act can be applicable in similar contexts (and to contrast with the invalidity of continuing under section 55(a) given the facts).

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938** **Crl.Rev.Pet.No. 1045 of 2005 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL NO.397/1998 of SESSIONS JUDGE,THALASSERY DATED 25-09-2004** **AGAINST THE JUDGMENT IN CC 267/1996 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE,THALASSERY DATED 09-10-1998** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **----------------------------------------ABDUL LATHEEF, S/O.MOOSA, AGED 48 YEARS, KODIYERI AMSOM, PALLOOR DESOM, MUNDOME, MAHE P.O.** **BY ADV. SRI.P.K.VIJAYAN** **RESPONDENT(S)/RESPONDENTS.: ---------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1045 of 2005 ---------------------------------------------Dated this the 5[th] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the concurrent judgment in Crl.Appeal No.397/1990 before Sessions Judge, Thalassery. He was charge sheeted in C.C.No.267/1996 by the Additional Chief Judicial Magistrate, Thalassery for offence punishable u/s.55(a) of the Abkari Act. The learned Magistrate convicted him and sentenced to rigorous imprisonment for one year and fine of ₹25,000/-, in default, rigorous imprisonment for six months. Against that he preferred the above appeal before Sessions Judge, Thalassery, where the learned Judge confirmed the conviction and dismissed the appeal. Being aggrieved by that, Crl.R.P.No.1045/2005 2 he preferred this revision petition. 2. The charge against the accused is that on 23.6.1996 at about 8 a.m., he was found in possession of 15 bottles of Indian Made foreign liquor each containing 180ml of Doctors AD Brandy. He was arrested and the contraband articles were seized, after preparing a mahazar, thereafter registered a crime and after completing investigation, the Excise Inspector, Kannur laid charge in the trial Court. During trial, prosecution examined PW1 to PW3 and marked Exts.P1 to P3. MO1 and MO2 series were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When the revision petition came up for Crl.R.P.No.1045/2005 3 hearing, the Excise Inspector, Excise Range Office, Kannur reported that the revision petitioner is no more and he produced a Death Certificate issued from the Registrar of Birth and Death, Thalassery Municipality, which is marked as Ext.C1. 4. According to Section 394 of Cr.P.C., there is abatement of appeals, but there is no provision in the Cr.P.C. with regard to the abetment of revision. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister,” 4 Crl.R.P.No.1045/2005 Therefore, a perusal of Section, it is found that except an appeal from a sentence of fine, there shall be finally abate on the death of the appellant. Proviso shows that near relatives may, within thirty days of the death of the appellant, may apply to the Appellate Court for leave to continue the appeal and if leave is granted, the appeal shall not abate. Here, after the death of the revision petitioner, the legal heirs were not impleaded, which is not a bar for continuing this revision. However, I heard the learned Public Prosecutor. 5. The occurrence was deposed by PW1, the Excise Inspector. His evidence shows that on 23.6.1996 at 8 a.m. while he was checking buses at Koodakadavu, he inspected KL-13-B-1544, Empire bus, the accused was found on the back seat of the bus carrying two plastic bags. On seeing the Excise party, Crl.R.P.No.1045/2005 5 he became perplexed and PW1 opened the bags and detected 15 bottles of A.D brandy each containing 180ml. He seized the articles, after preparing Ext.P1 mahazar. He registered Ext.P2 crime and occurrence report. He had taken sample from one bottle and sent for chemical examination. Mo1 and 2 are the seized articles. Ext.P3 is the chemical examination report, in which 40.35 percentage volume of ethyl alcohol was detected. PW2 supported the evidence of PW1. PW3 conductor admitted his signature in Ext.P1 seizure mahazar. Analysing the evidence, it is found that the accused was found in possession of excess quantity of foreign liquor. No evidence has been adduced by the prosecution to show that the liquor was transporting for sale. Even though no security labels of the Kerala State Beverages Corporation were found in the bottles, Crl.R.P.No.1045/2005 6 it was revealed that the bottles were transported from Mahe without valid documents. Therefore, he committed an offence punishable u/s.63 of the Abkari Act. 6. This Court in **Abdulla Kutty** v. **Station House Officer** [2007(4) KHC 907] held that the accused had imported or transported or even found in possession of 288 bottles of IMFL in violation of Foreign Liquor Rules. The accused is guilty under S.63 of the Act for violating the Foreign Liquor Rules while importing or transporting IMFL not in accordance with the regulations and the restrictions contained in the Rules. Therefore, the criminal liability fastened upon the accused is u/s.63 of the Abkari Act and not S.53 of the Abkari Act. In the result, the conviction u/s.55(a) of the Crl.R.P.No.1045/2005 7 Abkari Act is set aside. Since the accused is no more, it is difficult to convict the accused u/s.63 of the Abkari Act and therefore, the charge is abated and this revision petition is disposed of as above. **P.D. RAJAN, JUDGE.** acd