Sarojini v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** **Crl.Rev.Pet.No. 1146 of 2004 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO. 47/2000 of ADDITIONAL DISTRICT AND SESSIONS FAST TRACK COURT (ADHOC-1), KOZHIKODE DATED 07-06-2003** **AGAINST THE JUDGMENT IN CC 697/1997 of JUDICIAL MAGISTRATE OF FIRST CLASS-II, PERAMBRA DATED 15-01-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------SAROJINI, W/O.NARAYANAN NAIR, MOOSARIKANDI MEETHAL, KALPATHUR AMSOM, VELAYAKKODE DESOM.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1146 of 2004 ---------------------------------------------Dated this the 27[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.47/2000 of Additional District & Sessions Judge, Fast Track (Adhoc-I), Kozhikode. The revision petitioner was charge sheeted in C.C. No.697/1997 before Judicial First Class Magistrate CourtII, Perambra u/s.55(a) of the Abkari Act. After trial, the learned Magistrate convicted him u/s.55(a) of the Abkari Act and sentenced to simple imprisonment for six months and fine of 25,000/- , in default simple imprisonment for three₹ months. Against that, he preferred Crl.Appeal No.47/2000 before Additional District & Sessions Judge, Fast Track Crl.R.P. No.1146/2004 2 (Adhoc-I), Kozhikode, where the learned Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 10.12.1996 at 4.45 p.m., while the Preventive Officer was conducting patrol duty, the accused was found carrying 2 ½ litres of arrack at Vallakkode mukku in Kalpathure amsom. He was arrested and the contraband article was seized, reaching at the Excise Office, they registered a crime. After completing investigation, the Excise Inspector, Balussery laid charge before Judicial First Class Magistrate Court-II, Perambra. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P6 as documentary evidence. The plastic cannas was admitted as MO1 in the trial Court. While questioning the accused, he denied the incriminating circumstances brought out in Crl.R.P. No.1146/2004 3 evidence. He did not adduce any defence evidence. 3. 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. 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. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. 4. The learned counsel appearing for the revision petitioner contended that simple possession of arrack is not an Crl.R.P. No.1146/2004 4 offence u/s.55(a) of the Abkari Act. 5. The learned Public Prosecutor strongly opposed the above contention and contended that he was found in possession of illict arrack as alleged by the prosecution. Therefore, simple possession of illict liquor itself is sufficient to attract the offence u/s.58 of the Abkari Act. 6. While adverting to the above argument, I have examined as to whether what offence has been committed by the accused and whether the prosecution has established that the revision petitioner was in possession of illicit arrack with sufficient knowledge as stated u/s.58 of the Abkari Act. Section 58 reads as follows: “ **58. For possession of illicit liquor** :- Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, Crl.R.P. No.1146/2004 5 shall be punishable with imprisonment for a terms which may extend to ten years and with fine which shall not be less than rupees one lakh.” A reading of the above Section, it is clear that the possession must be first without lawful authority with the knowledge that it has been either unlawfully imported, transported or manufactured. The possession of unlawfully manufactured liquor is punishable u/s.58 of the Abkari Act, if that possession is with the knowledge that it is unlawfully manufactured. Therefore, it is clear from the reading of the Section that mere possession of any quantity of liquor or intoxicating drug by itself is not sufficient to convict a person for the offence u/s.58 of the Abkari Act. This position has been discussed by the Division Bench of this Court in **Josekutty** v. **State of Kerala** [2013 (1) KLT 434], in which it is held as follows: “The final report submitted shows that there is no allegation that the petitioner was in possession of the illicit liquor with Crl.R.P. No.1146/2004 6 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.” 7. The oral evidence in this case shows that while PW1 was conducting patrol duty, he seized MO1 arrack from the possession of the revision petitioner. He took 180ml of arrack as sample and sealed at the place of occurrence. He affixed label on the sample bottle. The independent witness present there signed in it. For that, he prepared Ext.P1 mahazar. He also registered Ext.P2 crime and occurrence report. Ext.P3 is another occurrence report. PW2 attested Ext.P1 mahazar. The contraband article was produced before Court. Ext.P4 is the requisition. Ext.P5 is the chemical examination result. ExtP6 is the thondy list. PW4, the Excise Guard, Perambra Crl.R.P. No.1146/2004 7 supported the evidence of PW1. Analysing the oral evidence of PW1 and PW4, it is not clear that the revision petitioner had knowledge that it was illicit arrack. 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 drug shall be punished. 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. Analysing the facts and circumstances in this case, it is clear that when there is no allegation that the revision petitioner was in possession of illicit arrack with the knowledge that it is illicit liquor, the conviction u/s.55(a) of the Abkari Act is unsustainable in law. Crl.R.P. No.1146/2004 8 In the result, the conviction of the revision petitioner u/s.55(a) of the Abkari Act by the Judicial First Class Magistrate-II, Perambra 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. Crl.R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd