Sivan and Ravi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 CRL.A.No. 205 of 2011 (A) -------------------------SC 441/2009 of ADDL.DISTRICT & SESSIONS FAST TRACK COURT (ADHOC-1), KOZHIKODE ## APPELLANTS/ACCUSED: ------------------------------------- ## 1. SIVAN, S/O.PERACHAN THAZHE VALAPPIL HOUSE, VIYYUR AMSOM, KOLLAM DESOM KOYILANDY TALUK, KOZHIKODE. ## 2. RAVI, S/O.KUNHIKANNAN, PILATHOTTATHIL HOUSE, KOYILANDY AMSOM KOTHAMANGALAM DESOM, KOYILANDY TALUK, KOZHIKODE. BY ADV. SRI.SANTHARAM.P RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.205 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of January 2016 ## JUDGMENT The accused in S.C. No.441 of 2009 on the files of Additional District and Sessions court Fast Track (Adhoc- 1) Kozhikode filed this appeal challenging the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act. 2. Heard. 3. The prosecution case can be briefly stated thus: On 1.4.2005 at 2.00 p.m., the appellants were found carrying 11.250 litre of Indian Made Foreign Liquor in the bus bearing Reg. No.KL-11/R-6489, in contravention of the Crl.A.205/2011 : 2 : provisions of the Abkari Act. 4. The appellants were sitting in the bus. During the course of vehicle check, PW1 and party found the appellants with two plastic covers. When the content inside the plastic cover was inspected, it was found that the cover carried by the first appellant contained 20 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 3.75 m.l. each and the cover carried by the second appellant contained ten bottles of Indian Made Foreign Liquor, each bottle having a capacity of 3.75 m.l. each. The appellants were arrested from the spot and the contraband articles were seized. Thereafter, the contraband articles, the appellants and the samples were taken to the Excise office. Thereafter, PW4 registered the crime. After Crl.A.205/2011 **==> picture [24 x 11] intentionally omitted <==** completing the investigation, PW5 filed the final report before the court. 5. Before the court below, PW1 to PW5 were examined and Exts.P1 to P9 were marked for the prosecution. No evidence was adduced on the side of the appellants. 6. PW1 was the Preventive Officer, who detected the offence. While PW1 and party were checking the vehicles, the appellants were found travelling in the bus bearing Reg.No.No.KL-11/R-6489 with the contraband articles. The appellants were arrested and the contraband article were seized. Ext.P3 mahazar was also prepared by PW1 at the spot. PW2 was the Excise Guard at Azhiyur check post. He also supported the evidence of PW1 in all Crl.A.205/2011 : 4 : material aspects. PW3 was the conductor of the bus, who could not identify the appellants. 7. Ext.P9 would show that the sample contained 41.97% by volume of ethyl alcohol. The evidence of PW1 and PW2 coupled with Ext.P9 Certificate of Chemical Analysis would show that the first appellant was carrying 7.5 litres of Indian Made Foreign Liquor and the second appellant was carrying 3.75 litres of Indian Made Foreign Liquor on 1.4.2005, as alleged by the prosecution. The samples were also produced before the court without any delay. 8. Having gone through the evidence on record, I am satisfied that the evidence of PW1 and PW2 with regard to the arrest of the appellants and the seizure of the Crl.A.205/2011 : 5 : contraband is natural, credit worthy and hence acceptable. 9. The contraband involved in this case was Indian Made Foreign Liquor. There is no allegation that the said contraband was not purchased from the Beverages Corporation of Kerala. 10 **.** The Division Bench of this court in Mohanan v. State of Kerala [2007 (1) KLT 845] held in paragraph 10 thus: “Now, the matter is settled by the Division Bench decision of this Court in _Surendran v. Excise Inspector_ (2004 (1) KLT 404) wherein it was held that S.55(a) of the Act deals with only illegal import, export or transport, transit etc. on such import or export. It was made clear that S.55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing. The observations made in _Karthikeyan v. State of_ Crl.A.205/2011 : 6 : _Kerala_ (2000 (3) KLT 639), _Balan v. State of Kerala_ (2002 (3) KLT 161) and _George Issac v. State of Kerala_ (2004 (1) KLT 752) contrary to the decision made in _Surendran's_ case (supra) are no more good law.” 11. In this case, there is no allegation that the possession of the contraband was in the course of illegal import or export. In the said circumstances, the offence under Section 55(a) of the Abkari Act will not be attracted in this case. The permissible quantity of Indian Made Foreign Liquor during the relevant period was 4.5 litres. The appellants were found in possession of 11.25 litres of Indian Made Foreign Liquor, which was no doubt excess in quantity than what was permissible under law during the period in question. Therefore, the appellants can be convicted only under Section 63 of the Abkari Act. Crl.A.205/2011 : 7 : In the said circumstances, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act stand set aside and I convict the appellants under Section 63 of the Abkari Act. 12. The appellants were in custody in connection with this case from 1.4.2005 to 27.4.2005. There is no previous conviction against the appellants. Considering the facts and circumstances, I am of the view that the appellants shall be sentenced under Section 63 of the Abkari Act to the period of detention already undergone by the appellants in connection with this case and a fine of Rs.5,000/(Rupees five thousand only) each and in default to simple imprisonment for one month each, to secure the ends of justice. Accordingly, I order so. Crl.A.205/2011 : 8 : In the result, this appeal stands allowed in part as above. The appellants shall surrender before the court below on 21.3.2016 to suffer the sentence. ## **Sd/-** ## **B.SUDHEENDRA KUMAR,** ## **JUDGE** _dl/..5.2.2016_ _// True Copy // PA to Judge_