Joseph v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2016-05-31
Court Decision / Holding: Conviction and sentence under Section 58 of the Abkari Act are set aside. The revision petitioner is convicted under Section 63 of the Abkari Act and sentenced to pay a fine of Rs. 5,000, with simple imprisonment for three months in default.
Final Disposition: Crl.R.P. partly allowed.

Parties to the Case

Appellants / Petitioners

Joseph

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• P. Vijaya Bhanu
• Tony Mathew

Counsels for Respondents

• Smt. V. P. Sathi

Case Synopsis & Summary

Joseph, aged 34, stands before the Kerala High Court in a Criminal Revision Petition challenging the affirmation of a conviction under the Abkari Act. The material facts trace to 27 March 1998, when an Excise Inspector, during patrol at Aleer Junction, Kallettumkara road, found the accused with a large shopper containing 13 bottles (8.450 litres) of beer. The items were seized and a mahazar prepared; the case moved from the Judicial First Class Magistrate to the Sessions Court, and the trial court convicted under Section 58 of the Abkari Act. On appeal, the III Additional Sessions Judge (Adhoc), Fast Track Court-I, Thrissur, modified the sentence, but the revision petition challenges this outcome. The court notes the Abkari Act definitions: Beer includes all fermented liquors usually made from malt (Section 3(11)); liquor includes beer (Section 10), and a statutory notification (S.R.O. 225/1998/TD) limits possession to 4.5 litres per person. The discussion cites Mohanan v. State of Kerala and Raman and another v. State of Kerala to frame the interpretation of Section 63 versus Section 55(a) and theForeign Liquor Rules. The High Court concludes that the accused possessed an excess quantity of beer, attracting Section 63 rather than Section 58, and accordingly, convicts under Section 63 with a fine of Rs. 5,000 and three months’ default imprisonment, while setting aside the earlier conviction under Section 58.

Provisions of Law Cited

Section 3(11) of the Abkari Act (definition of Beer)Section 10 of the Abkari Act (definition of Liquor)Section 58 of the Abkari ActSection 63 of the Abkari ActForeign Liquor Rules, R.11 and R.11AS.R.O. No. 225/1998/TD (Beer possession limit)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the conviction under Section 63 is not sustainable and that the evidence supports an offence under Section 58; the defense challenged the mahazar and questioned the reliability of PW2’s testimony, asserting that mere possession of beer within the purported limit should not inexorably lead to Section 63 liability without clear evidence of export/import or transit. They emphasize the statutory limit of 4.5 litres and argue that the record does not conclusively prove the requisite nexus for Section 63.

Contentions of Respondents

The State contends that the possession of excess beer constitutes an offence under Section 63 of the Abkari Act, supported by the proportion of beer exceeding the notified limit; reliance is placed on Mohanan to interpret Section 63 as applicable in excess-quantity scenarios and on Raman to delineate situations where Foreign Liquor Rules may apply; the evidence, it is argued, demonstrates illegal possession of excess quantity, justifying the invocation of Section 63 and affirming the conviction and sentence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mohanan v. State of Kerala	2007 (1) KHC 752	Positive	Court relied on Mohanan to hold that in a case of transportation of toddy in excess of what was permitted, Section 55(a) is not applicable and Section 63 is attracted.
Raman and another v. State of Kerala	2007(3) KHC 681	Mentioned Only	Cited to discuss that in possession of foreign liquor in excess quantity with no proof of incidental possession, offences may fall under Foreign Liquor Rules R.11 and R.11A; not directly applied to the present case.

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 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3239 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 612/2001 of III ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.1, THRISSUR DATED 18-10-2003** **AGAINST THE JUDGMENT IN SC 226/1999 of ADDITIONAL ASSISTANT SESSIONS JUDGE, IRINJALAKUDA DATED 30-11-2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------JOSEPH, AGED 34 YEARS, S/O. MALIYEKKAL KOCHAPPAN, ALOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.TONY MATHEW** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No. 3239 of 2003 ---------------------------------------------Dated this the 31[st] day of May, 2016 ## **ORDER** This revision petition has been preferred against the judgment in Crl. Appeal No.612/2001 of III Additional Sessions Judge (Adhoc), Fast Track Court -I, Thrissur. He was charge sheeted in S.C.No.226/1999 of Additional Assistant Sessions Judge, Irinjalakuda u/s.58 of the Abkari Act. The charge against the revision petitioner is that while on 27.3.1998 a 5.30 p.m. the Excise Inspector, Irinjalakuda Range was conducting patrol duty at Aleer Junction, Kallettumkara road, the accused was found carrying a big shopper having bottles, upon suspicion, they inspected the big shopper and found 13 bottles (8.450 litres) of beer. The Crl.R.P. No.3239/2003 2 Excise Inspector seized those articles, after preparing a mahazar, reaching at the Excise Office, he registered a crime. After completing investigation, the Excise Inspector, Irinjalakuda laid charge before Judicial First Class Magistrate Court-I, Irinjalakuda. Subsequently, the case was committed to Sessions Court, from there it was made over to the Additional Assistant Sessions Court. 2. During trial, prosecution examined PW1 to PW3 and marked Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. MO1 and MO2 were marked as material objects. He examined DW1 and marked Exts.D1 to D3. The learned Additional Assistant Sessions Judge convicted the accused. Against that, he preferred Crl.Appeal No.612/2001 before III Additional Crl.R.P. No.3239/2003 3 Sessions Judge (Adhoc), Fast Track Court-I, Thrissur, where the sentence was modified. Being aggrieved by that, he preferred this revision petition. 3. The word 'Beer' is defined under Section 3(11) of the Abkari Act, which reads as follows: “Beer” includes ale, stout, porter and all other fermented liquors usually made from malt.” The evidence of the Excise Inspector shows that the accused was found in possession of 8.450 litres of beer. Section 10 of the Abkari Act defines liquor which includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. The evidence of PW1 shows that on 27.3.1998 at 5.30 p.m., the revision petitioner was found in front of the shop of one Joseph with a big shopper MO1. During inspection, he detected 12 bottles of beer in it (MO2). All bottles are Crl.R.P. No.3239/2003 4 from the same brand. Therefore, he prepared Ext.P1 mahazar. The accused was arrested. PW2 did not support the prosecution case. He denied the signature in Ext.P1 mahazar. PW3 admitted that he received MO1 and MO2 in his office. For that, he registered a crime. Ext.P1 is the mahazar. Ext.P3 is the arrest memo. Ext.P4 is the search list. Ext.P5 is the search memo. Ext.P7 is the crime and occurrence report. The seized articles were examined in the chemical examiner's lab. Ext.P8 is the chemical examination report. 4. Analysing the evidence, it is found that the revision petitioner was found in possession of excess quantity of beer. As per the notification S.R.O.No.225/1998/TD dated 5.3.1998, one person is permitted to possess 4.5 litres of beer. Section 63 of the Abkari Act reads as follows: Crl.R.P. No.3239/2003 5 “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 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 **Mohanan** v. **State of Kerala** [2007 (1) KHC 752] held that in a case of transportation of toddy by toddy tapper in excess of what was permitted S.55(a) is not applicable and S.63 is attracted. This Court in another decision in **Raman and another** v. **State of Kerala** [ 2007(3) KHC 681] held that in the case of possession of foreign liquor in excess quantity and when the prosecution has not proved that possession of the contraband article was incidental or in connection with export, import or transit of liquor, the offence Crl.R.P. No.3239/2003 6 committed by the accused would fall under the purview of R.11 and R.11A of Foreign Liquor Rules. The offence committed by the accused is punishable under S.63 instead of S.55(a). Therefore, the facts and circumstance show that the revision petitioner was in possession of excess quantity of beer, which is an offence punishable u/s.63 of the Abkari Act. In the result, conviction and sentence passed u/s.58 of the Abkari Act are set aside. The revision petitioner is convicted u/s.63 of the Abkari Act and sentenced to pay fine of 5,000/-, in default of payment of fine,₹ simple imprisonment for three months. Crl.R.P. is partly allowed. ## **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3239/2003 7 Crl.R.P. No.3239/2003 8