VANAJA vs STATE OF KERALA, (Excise Inspector of Police Wadakkancherry Range)

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933 CRRP.No. 9 of 2001 ( ) ---------------------CRA.70/1999 of SESSIONS COURT,THRISSUR CC.69/1998 of J.M.F.C.,VADAKKANCHERRY ------------------- PETITIONER/REVISION PETITIONER): ---------------------- VANAJA, AGED 35 YEARS, W/O. BALAN, MANGATHU VEETTIL, KODAMBU DESOM, KANJIRAMCODE VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT ---------STATE OF KERALA,(EXCISE INSEPCTOR OF POLICE, WADAKKANCHERRY RANGE CRIME NO. 28/96) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH. V.S. THIS CRIMINAL REVISION PETITION HAVING COME-UP FOR ADMISSION ON 25-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: smvd ## **N.K. BALAKRISHNAN,J. -----------------------------------Crl.R.P. No. 9 of 2001 -----------------------------------------Dated this the 25[th] day of January, 2012** ## **JUDGMENT** Petitioner was convicted by JFCM-I, Wadakkanchery for the offence punishable under Section 55 (a) of Abkari Act. The date of detection was on 13/12/1996. The allegation is that, on that day, at about 12 noon, the petitioner was found in possession of 2 litres of illicit liquor in 5 litre jerky. She was arrested then and there. The property was seized as per seizure mahazar. The accused was produced before the learned Magistrate. After conducting investigation, the charge was laid against the accused. Since it was prior to the amendment Act of 1997, the case was tried by the learned Magistrate who found the accused guilty of the offence punishable under Section 55(a) and she was sentenced to undergo R.I. for one year and to pay a fine of Rs.25,000/-. In the appeal, the learned Sessions **Crl.R.P. No. 9 of 2001 -: 2 :-** Judge confirmed the conviction under Section 55(a) of the Abkari Act. But the sentence was modified directing the petitioner to undergo R.I. for 3 months and to pay Rs.25,000/- as fine. 2. The learned counsel for the petitioner assails the conviction under Section 55(a) of the Abkari Act stating that there is absolutely no allegation to the effect that the petitioner was found in possession of the liquor mentioned above in the course of import, export, transport or transit and as such Section 55(a) is not attracted at all. In support of that submission, the learned counsel has relied upon the decision of the Division Bench of this court in **Surendran Vs. Excise Inspector** reported in 2004 (1) KLT 494. There was conflict of judicial opinion since the learned single Judge in **Rajeevan vs. Excise Inspector** 1991 (1) KLT 38 and **Purushan v. State of Kerala** (2002(2) KLT 661) took the view that, to be culpable, the possession ## **Crl.R.P. No. 9 of 2001 -: 3 :-** must be in the course of import, export, transport or transit and that simple possession is not enough to attract the rigour of Section 55(a). That was in conflict with the decision in **Meenakshi vs. Excise Inspector** 1995(1) KLT 738. The Division Bench in **Surendran's** case cited supra held that the view as expressed in **Rajeevan** and **Purushan** cited supra is correct. The decision in **Surendran's** case cited supra was followed by another Division Bench of this court in **Mohanan Vs. State of Kerala** 2007 (1) KLT 845. Therefore, in the light of the decisions mentioned above, the learned counsel for the petitioner submits that as the prosecution has no case that the possession of the liquor was in the course of export, import, transport or transit as mentioned in Section 55(a) of the Abkari Act, the conviction for the offence punishable under Section 55(a) cannot be sustained. 3. The next question is whether the possession of **Crl.R.P. No. 9 of 2001 -: 4 :-** the liquor mentioned would attract the offence under Section 58 of the Abkari Act. To attract the offence under Section 58, it must be proved that the petitioner was in possession of liquor mentioned above knowing the same to have been unlawfully imported, transported or manufactured or knowing that the duty, tax or rent payable under this Act was not paid. Therefore, in order to attract Section 58 of the Act, the prosecution must prove that the petitioner was in possession of the liquor mentioned above knowingly and the same should have been unlawfully imported, transported or manufactured. There was no such case for the prosecution. The learned counsel for the petitioner submits that there was no allegation in the mahazar or crime occurrence report that the possession was with the knowledge as mentioned above. So much so, Section 58 of the Abkari Act as it stood then also is not attracted. **Crl.R.P. No. 9 of 2001 -: 5 :-** 4. The learned Public Prosecutor would submit that when a person was found in possession of liquor it was the duty of the accused to explain as to how she happened to be in possession of the same. According to the learned Public Prosecutor since that is the fact within the exclusive or special knowledge of the accused she should have offered her explanation regarding the same. It is also argued that the accused has no case that it was entrusted to her by somebody else. The learned Public Prosecutor submits that no explanation was offered by her to get herself allowed from the penal provision contained in Section 58 of the Act. That plea could have been accepted if the prosecution had alleged that the accused was in possession of the same knowingly the same having been illegally imported, exported, transported or manufactured. Therefore, that argument cannot help the prosecution at all. **Crl.R.P. No. 9 of 2001 -: 6 :-** 5. The date of detection was 13.12.1996. The amendment came into effect only on 03.06.1997. Section 64 of the Abkari Act as it stood prior to 03.06.1997 did not take in Section 58 and therefore, the presumption under Section 64 of the Act was not available to the prosecution to contend that the accused was liable to account for possession of the same. 6. Even though Sections 55(a) and Section 58 are not attracted, the possession of the liquor mentioned above would attract offence under Section 63 of the Act. Section 63 is an minor offence when compared to Section 55(a) of the Act. Section 63 states that 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 **Crl.R.P. No. 9 of 2001 -: 7 :-** such wilful act or omission with fine. To that extent, the petitioner is entitled to succeed. In the result, this Crl. Revision petition is disposed of as stated below:- The conviction and sentence passed against the petitioner for the offences punishable under Section 55(a) of the Abkari Act are set aside. She is convicted of the offence punishable under Section 63 of the Abkari Act and is sentenced to pay a fine of Rs.2,000/(Rupees Two thousand only), in default whereof, she will undergo S.I. for one month. ## **N.K. BALAKRISHNAN, JUDGE.** //True copy// P.A. To Judge smvd