Shaji R. and Chandralekha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934 Crl.Rev.Pet.No. 555 of 2003 ( ) ------------------------------CRL.A.333/1997 of II ADDL.SESSIONS COURT,TRIVANDRUM CC.88/1996 of J.M.F.C.-II,NEYYATTINKARA REVISION PETITIONER(S): ---------------------- 1. SHAJI R., CHENKITTAVILA VEEDU, ERYVAIKONAM, THIRUPURAM P.O., NEYYATTINKARA, TRIVANDRUM. 2. CHANDRALEKHA, CHENKITTAVILA VEEDU, ERYVAIKONAM, THIRUPURAM P.O., NEYYATTINKARA, TRIVANDRUM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): -------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## **P.S.GOPINATHAN, J.** **---------------------------------------Crl.R.P.NO. 555 OF 2003 ---------------------------------------Dated this the 12[th] day of October, 2012** ## **O R D E R** The Circle Inspector of Excise, Neyyattinkara prosecuted late Sathyabhama, the mother of revision petitioners, before the Judicial Magistrate of the First Class-II, Neyyattinkara in C.C.No.88/1996 accusing offence under Section 55 (a) of the Abkari Act with an allegation that at 5 P.M. on 13/2/1996, near Siva Temple, Kumali, late Sathyabhama was found carrying 2 ½ litres of illicit arrack in a jerry can which was marked as MO1. 2. Late Sathyabhama pleaded not guilty. Therefore, she was sent for trial. On the side of the prosecution, PWs 1 to 3 were examined. Exhibits P1 to P3 and MO1 were marked. After closing the Crl.R.P.NO. 555 OF 2003 2 evidence for the prosecution, Sathyabhama was questioned under Section 313 (1) (b) of the Code of Criminal Procedure. She took a plea of innocence and stated that she was falsely implicated. However, no defence evidence was let in. On appraisal of the evidence, the learned Magistrate arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for a period six months and a fine of Rs.25,000/- under Section 55(a) of the Abkari Act. 3. Aggrieved by the above conviction and sentence, she preferred Crl.Appeal 333/1997 before the Sessions Judge, Thiruvananthapuram. The Additional Sessions Judge, by the impugned judgment dated 18/7/2002, while confirming the conviction and sentence, dismissed the appeal. Crl.R.P.NO. 555 OF 2003 3 Stating that Sathyabhama died on 24/11/1997, her children have now come up in revision, assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal. It is without noticing the death of the appellant, the appeal was disposed of on merit. 4. I have heard Adv. Sri. Suman Chakravarthi the learned counsel appearing for the revision petitioner and Smt. Sareena George, the learned Government Pleader. Perused the judgment. 5. It is admitted that at the time of occurrence, arrack was a permitted liquor. By virtue of notification SRO No.89/69, the possession of arrack up to 750 mls was also permitted. Satyabhama was prosecuted as if she was possessing 2 ½ litres of illicit arract. Neither in the evidence of PW1, who detected the crime nor in the evidence of PW3, who Crl.R.P.NO. 555 OF 2003 4 investigated the case, there is any whisper that late Sathyabhama acquired the said quantity of arrack from an illicit source or that it was illicitly manufactured by her. Therefore, according to the learned counsel for the revision petitioner, it is to be presumed that Sathyabhama acquired the liquor from a lawful source and it couldn't said that liquor seized was illicit arrack. The learned counsel would further submit that in the circumstance, only an offence under Section 63 of the Abkari Act is made out. In support of the argument, the learned counsel had relied upon the decision reported in Mohanan v. State of Kerala [2007 (1) KLT 845]. In that case a Devision Bench of this Court had found that the possession of a permitted liquor in excess of the quantity permitted would make out only an offence under Section 63 of the Abkari Act and no offence Crl.R.P.NO. 555 OF 2003 5 under Section 55(a) of the Abkari Act is made out. 6. Having heard either side, I find merit in the submission made by the learned counsel. There is nothing to conclude that the liquor seized was illicit. It has to be concluded that the arrack seized was not illicit. But, the quantity exceeds than what is permitted by the above SRO. In the above circumstance, I find no reason to deviate from the above ruling. Therefore, I find that only an offence under Section 63 of the Abkari Act is made out and no offence under Section 55(a) of the Abkari Act is made out. Late Sathyabhama is liable only for offence under Section 63 of the Abkari Act. Having due regard to the quantity that she was possessing and the fact that she expired, I find that a fine of Rs.2,500/- would meet the ends of justice. In the result, while allowing the revision petition Crl.R.P.NO. 555 OF 2003 6 in part, the conviction and sentence under challenge are converted to conviction under Section 63 of the Abkari Act and sentenced to a fine of Rs.2,500/-(two thousand five hundred only). Sd/- **P.S.GOPINATHAN, JUDGE.** //TRUE COPY// P.A. TO JUDGE DSV/- Crl.R.P.NO. 555 OF 2003 7