## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937**
**CRL.A.NO. 1769 OF 2004 (C) ---------------------------**
**AGAINST THE JUDGMENT IN SC NO.503/2001 OF ADDITIONAL SESSIONS COURT, VADAKARA DATED 15-10-2004**
**--------------------------**
**APPELLANT(S)/ACCUSED:: --------------------MANOJ, S/O RAMAKRISHNAN, THIYYATH PARAMBIL HOUSE, PAZHAVIL P.O., CHERPU, THRISSUR.**
**BY ADVS.SRI.P.VIJAYA BHANU SRI.PRASUN.S**
**RESPONDENT(S)/COMPLAINANT:: ---------------------------**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SRI. N. SURESH**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**NS**
## **P.D. RAJAN, J.**
## **----------------------------Crl. Appeal No.1769 of 2004 ---------------------------------Dated this the 26[th] day of February, 2016**
## **J U D G M E N T**
This appeal is preferred by the accused against the judgment of conviction and sentence in S.C. No.503 of 2001 of the Additional Sessions Judge, Vadakara under Sec.55(a) of the Abkari Act. The charge against the accused is that on 29.01.2000 at 10.50 p.m., the Circle Inspector of Police, Nadapuram inspected a bus Reg. No.KL-13-B-6219 at Chombal on the Kannur-Kozhikode National Highway. At that time, the accused was found possessing 10.875 litres of Indian Made Foreign Liquor without any bill or documents. He was arrested and the contraband articles were seized. Reaching at Edacheri Police station, he registered a crime. After completing investigation, the Sub Inspector of Police, Edacheri laid charge before the Judicial First Class Magistrate Court, Vadakara. From there, the case was committed to Sessions Court, Kozhikode. Subsequently, it was made
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over to Additional Sessions Judge, Vadakara.
2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P8 as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned Additional Sessions Judge convicted the accused under Sec.55(a) of the Kerala Abkari Act and sentenced to rigorous imprisonment for one year and fine of Rs.1,00,000/(Rupees one lakh only), in default of payment of fine, rigorous imprisonment for one year. Being aggrieved by that conviction and sentence the accused preferred this appeal.
3. Learned counsel appearing for the appellant contended that he was in possession of excess quantity of liquor which was mentioned in paragraph 10 of the judgment of the trial court. If that be the position, no offence under Sec.55(a) of the Akari Act will be attracted.
4. Learned Public Prosecutor conceded with the
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above argument.
5. The possession of Indian Made Foreign Liquor was seized by the Circle Inspector of Police, Nadapuram who was examined in the trial court as PW4. The evidence of PW4 shows that, on 29.01.2000 at about 10.50 p.m., he inspected the bus bearing Reg. No.KL-13B-6219 at Chombal in front of the Block Panchayath, Vadakara on the Kannur -Kozhikode National Highway. The appellant was found in possession of 16 bottles of Indian Made Foreign Liquor in a bag. MO1 and MO2 are the seized foreign liquor. MO3 is the bag. He affixed label on the sample bottle and obtained signature of the accused and the witness. Reaching at the Edacheri Police Station, he registered a crime Ext.P5 is the FIR, Ext.P1 is the seizure mahazar, Ext.P2 is the Scene Mahazar, Ext.P3 is the Search Memo. Further investigation was conducted by the Sub Inspector of Police. PW1 is the conductor of the Bus and PW2 is the cleaner. They did not support the prosecution case. But, they admitted their signature in Ext.P1 seizure mahazar. Both witness admitted that PW4
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conducted a search inside the bus.
6. Learned counsel appearing for the appellant contended that the investigation was conducted by the Head Constable, PW5. Actually, the learned Additional Sessions Judge ascertained the nature of investigation conducted by PW5. It was specifically mentioned in the lower court judgment that PW4 entrusted the seized article to him and he had not conducted any investigation. The case was subsequently investigated by the Sub Inspector of Police who was not examined in this case. Analysing the evidence, it is found that excess quantity of Indian Made Foreign Liquor was seized from the possession of the appellant which was observed by the learned Sessions Judge.
## 7. This Court in **Raman v. State of Kerala**
## **[2007 (4) KLT 223]** held as follows:
6. R.11 of Foreign Liquor Rules deals transport, which reads as follows:-
“No quantity of foreign liquor in excess of quantity notified by the Government under Ss.10 and 13 of the Act shall be transported from one place to another within the Sate unless the same is covered by a transport permit
## Crl. Appeal No.1769 of 2004 5
issued by the Excise Inspector in charge of the Range of origin. A copy of such permit shall be forwarded by the Excise Inspector concerned to the Excise Inspector in charge of the Range to which the consignment is destined. The Excise Inspector at the destination shall verify the consignment on arrival and see that the quantity is duly credited in the accounts in case the transport is by a licensee.”
The term transport is interpreted under S.3(18) of the Abkari Act thus:- "Transport" means to move from one place to another within the State”. As per R.11A of the Foreign Liquor Rules, no quantity of foreign liquor in excess of 1.5 litres shall be possessed or stored by any person within the State unless the same is covered by a permit issued by the officer in charge of the Division concerned. If that be so, the offence committed by the appellants would fall under the purview of Rr.11 and 11A of the Foreign Liquor Rules. S.10 of the Abkari Act stipulates that no liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provisions of the next following Act. As per S.13 of the Abkari Act, no person, not being a licensed manufacturer or vendor of liquor or intoxicating drugs, shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as prescribed under the notification issued by the Government. Violation of any rule or order made under the Abkari Act can be punished under S.63 of the Abkari Act.
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8. Therefore, possession of foreign liquor in excess quantity than as prescribed, amounts to violation of the Foreign Liquor Rules and attracted punishment under Sec.63 of the Abkari Act which reads as follows:
“ 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;”
9. Therefore, contravention of Sec.63 of the Abkari Act or Rule made thereunder and not otherwise provided in this Act shall be punished for a fine of Rs.5,000/- (Rupees five thousand only).
10. In the result, the offence under Sec.55(a) of the Kerala Abkari Act is set aside and the appellant is sentenced to a fine of Rs.5,000/- (Rupees five thousand only) under Sec.63 of the Abkari Act in default, simple imprisonment for three months. The appellant is directed
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to surrender before the learned Additional Sessions Judge, Vadakara to undergo the modified sentence, failing which the Additional Sessions Judge shall issue non bailable warrant against the appellant forthwith.
This appeal is partly allowed as above.
NS/27/02/2016
Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge
