N. Chandran v. The Excise Inspector, Kuthuparamba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **Crl.Rev.Pet.No. 2072 of 2006 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL 172/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY DATED 08-02-2006** **AGAINST THE JUDGMENT IN CC 849/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KUTHUPARAMBA DATED 19-03-2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **N.CHANDRAN, S/O. KUNKAN, MANANTHERI AMSOM, POOYODE DESOM, KANNUR DISTRICT.** ## **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:** **---------------------------------------** **1. THE EXCISE INSPECTOR, KUTHUPARAMBA.** ## **2. STATE OF KERALA, REP. BY THE** **PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2072 of 2006 ---------------------------------------------Dated this the 3[rd] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.172/2001 of Additional Sessions Judge, Thalassery. He was charge sheeted in C.C. No.849/1997 by the Judicial First Class Magistrate Court, Kuthuparamba for offence punishable u/s.55(a) of the Abkari Act. The learned Magistrate convicted the accused and sentenced to simple imprisonment for six months and fine of 25,000/-, in default₹ simple imprisonment for two months u/s.55(a) of the Abkari Act. Against that, he preferred the above criminal appeal before Additional Sessions Court, Thalassery, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. Crl.R.P. No.2072/2006 2 2. The charge against the revision petitioner is that on 26.2.1997 at 12.45 hours the Excise Inspector, Kuthuparamba was conducting patrol duty within his jurisdiction, when he reached at Manantheri amsom, Pooyode desom, he found that the accused was in possession of 10 litres of arrack in an aluminium pot. He inspected the Can and identified it as arrack. The accused was arrested and the contraband articles were seized, reaching at the Excise Office, he registered a crime. After completing investigation, he laid charge in the Judicial First Class Magistrate Court, Kuthuparamba. To prove the offence, the prosecution examined PW1 and PW2 and marked Exts.P1 to P5. MO1 and MO2 were marked as material objects in the trial Court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. The accused marked Ext.D1 during his trial. 3. The learned counsel appearing for the revision petitioner contended that the trial Court examined PW1 and Crl.R.P. No.2072/2006 3 PW2 alone and closed the evidence in view of the decision of v. the Apex court in _**Raja Deo Sharma State of Bihar**_ [1998 (7) SCC 507]. Analysing the evidence of PW1 and PW2, it is clear that their evidence is not believable since the offence was committed before the commencement of the new Abkari Act, hence the conviction is liable to be quashed. 4. I heard the learned Public Prosecutor also and ascertained whether any illegality or irregularity had been committed by the Courts below while disposing the above case. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. Crl.R.P. No.2072/2006 4 If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. 5. While adverting to the above argument, I have examined the oral evidence of PW1 and PW2. PW1 is the Excise Inspector, who deposed that he seized 10 litres of arrack from the possession of the revision petitioner. He took 180ml sample from the seized article. For that, he prepared Ext.P1 mahazar. Ext.P2 is the occurrence report. He forwarded the articles to the Court. Ext.P3 is the bail bond. Ext.P4 is the copy of requisition. Ext.P5 is the chemical examinationer's report. PW2 attested Ext.P1 mahazar. Analysing the oral evidence, it is not clear that the revision petitioner had knowledge that it was illicit arrack, when PW1 arrested him. The ingredients of an offence u/s.55(a) is whoever in contravention of this Act or of any rule or order made under this Act imports, exports, transports, transits or possesses liquor or any intoxicating Crl.R.P. No.2072/2006 5 drug shall be punished. 6. The arrack was banned in the year 1996. After amendment, S.3(10) of the Abkari Act reads as follows: “Liquor” includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.” The arrack is defined u/s.3(6A) of the Abkari Act as follows: “Arrack” means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in a pharma-copoeia approved by the Government of India or the Government of Kerala, or Manufactured according to a formula approved by the Government of Kerala in respect of patent and proprietary preparations or approved as a bonafide medicinal preparation by the Expert Committee appointed under Section 68A of the Act.” The incident had occurred on 26.2.1997. Therefore, the offence u/s.55(a)is not attracted in such cases. Possession of illicit liquor is an offence u/s.58 of the Abkari Act. Therefore, if he was in possession of illicit arrack, he will be punished u/s.58 of the Abkari Act. For that, prosecution has to allege and prove that the revision petitioner was in possession of illicit liquor with knowledge that it is illicit liquor. After Crl.R.P. No.2072/2006 6 amendment of the Abkari Act, possession of arrack is an offence under S.8 of the Act. Between 1.4.1996 and 3.6.1997 possession of arrack is not an offence under S.55(a) of the Abkari Act, therefore, the conviction u/s.55(a) of the Abkari Act is unsustainable in law. 7. This Court in _**Josekutty**_ v. _**State of Kerala**_ [2013 ## (1) KLT 434] held as follows: “The final report submitted shows that there is no allegation that the petitioner was in possession of the illicit liquor with the knowledge that it is illicit liquor. So also, none of the prosecution witnesses has a case that petitioner had the knowledge that he was holding a can containing illicit liquor. In such circumstances, possession of liquor with the knowledge that it is illicit liquor, cannot be assumed. Hence, in the absence of evidence, petitioner can only be convicted for the offence under S.63 of the Kerala Abkari Act. S.63 as it then stood, provides only the sentence of fine.” In the result, the conviction u/s.55(a) of the Abkari Act against the revision petitioner is set aside and he is convicted u/s.63 of the Abkari Act and sentenced to pay fine of ₹2,000/- (Rupees two thousand only), in default of payment of fine, simple imprisonment for one month. The revision Crl.R.P. No.2072/2006 7 petitioner is directed to pay the fine amount in the trial Court forthwith. Crl.R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd