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2007 DIGILAW 545 (KER)

Raman v. State of Kerala

2007-08-20

K.THANKAPPAN

body2007
Judgment :- Appellants were accused Nos.1 and 2 in S.C.No.368/2002 on the file of the Court of the Addl. Sessions Judge, Fast Track Court No.II, Palakkad. They faced trial for the offence punishable under S.55(a) of the Abkari Act on the allegation that they possessed and transported 44.640 litres of Indian Made Foreign Liquor. To prove the allegation against the appellants, PWs.1 to 5 were examined and Exts.P1 to P6 were marked. MOs.1 and 2 were also marked. After closing the evidence, the appellants were questioned under S.313 Cr.P.C.. They denied the allegation and stated that they were falsely implicated by the excise officials. On the side of the prosecution Exts.D1, D2, D2(a) and D2(b) were marked. Relying on the evidence adduced on both sides, the Trial Court found both the appellants were guilty of the offence punishable under S.55(a) of the Abkari Act and they were convicted there under and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo simple imprisonment for six months each. The judgment of the Trial Court is challenged in this appeal. 2. Heard learned counsel for the appellants and learned Public Prosecutor and perused the materials placed on records. 3. Learned counsel for the appellants has taken the following contentions in challenging the judgment under appeal:- Firstly, it is contended that the Trial Court has committed serious error in accepting the evidence of official witnesses to find the appellants guilty under S.55 (a) of the Abkari Act, as there is no independent witness to support the prosecution case. It is also contended that the findings of the Trial Court that the appellants had committed an offence punishable under S.55(a) of the Abkari Act is not legally sustainable in the light of the principles laid down in two decisions reported in Surendran v. Excise Inspector (2004 (1) KLT 404 Sudhepan v. State of Kerala (2006 (1) KLT SN 52 (C.No.72)). It is further contended that the sentences awarded against the appellants are excessive. 4. PW1, the then Excise Inspector, Palakkad Range, stated that on 24-9-2000 while he was checking vehicles at Karinkarapully Junction, autorickshaw bearing Registration No. KL9-4263 arrived there and on examination 44.640 litres of Indian Made Foreign Liquor was found kept in five cartons on the seat of the passengers and below the seat. 4. PW1, the then Excise Inspector, Palakkad Range, stated that on 24-9-2000 while he was checking vehicles at Karinkarapully Junction, autorickshaw bearing Registration No. KL9-4263 arrived there and on examination 44.640 litres of Indian Made Foreign Liquor was found kept in five cartons on the seat of the passengers and below the seat. He also stated that the 1st appellant was the driver and the 2nd appellant was the person who was in the passenger seat. He further stated that the appellants were arrested from the spot and contraband articles were seized along with the autorickshaw and the sample was taken for chemical examination. He also stated that the appellants and the articles were taken to the Excise Range Office and registered a case against the appellants. The evidence of PW2, the then Excise Guard attached to Excise Range Office, Palakkad would also show that the 1st appellant was the driver and the 2nd appellant was sitting in the passengers seat with the cases. He identified MOs.1 and 2. Though PWs.3 and 4 were examined to prove the prosecution case, they turned hostile to the prosecution. However, the evidence of PWs.3 and 4 would also show that the 1st appellant was driving the autorickshaw and the 2nd appellant was sitting in the passengers seat with the cartons. Hence, the first contention of the learned counsel for the appellant is not sustainable. 5. The next question to he considered is whether the finding of the court below that the appellants had committed an offence punishable under S.55(a) of the Abkari Act is sustainable or not? As per the principles laid down by this Court in Surendran's case (supra), the case should fall within the ambit of S.55(a) only when a person was found to be in possession of liquor in the course of import, export, transport or transit of the goods. In Sudhepan's case (Supra) this Court held that under S.55(a) of the Abkari Act the prosecution must allege and prove that possession of the contraband liquor was incidental or in connection with export, import, transport or transit of liquor. The prosecution in this case has not proved that the possession of the contraband article was incidental or in connection with export, import, transport or transit of liquor. 6. The prosecution in this case has not proved that the possession of the contraband article was incidental or in connection with export, import, transport or transit of liquor. 6. R.11 of Foreign Liquor Rules deals transport, which reads as follows:- "No quantity of foreign liquor in excess of quantity notified by the Government under Ss.10 and 13 of the Act shall be transported from one place to another within the Sate unless the same is covered by a transport permit issued by the Excise Inspector in charge of the Range of origin. A copy of such permit shall be forwarded by the Excise Inspector concerned to the Excise Inspector in charge of the Range to which the consignment is destined. The Excise Inspector at the destination shall verify the consignment on arrival and see that the quantity is duly credited in the accounts in case the transport is by a licensee." The term transport is interpreted under S.3(18) of the Abkari Act thus:- "Transport" means to move from one place to another within the State". As per R.11A of the Foreign Liquor Rules, no quantity of foreign liquor in excess of 1.5 litres shall be possessed or stored by any person within the State unless the same is covered by a permit issued by the officer in charge of the Division concerned. If that be so, the offence committed by the appellants would fall under the purview of Rr.11 and 11A of the Foreign Liquor Rules. S.10 of the Abkari Act stipulates that no liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provisions of the next following Act. As per S.13 of the Abkari Act, no person, not being a licensed manufacturer or vendor of liquor or intoxicating drugs, shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as prescribed under the notification issued by the Government. Violation of any rule or order made under the Abkari Act can be punished under S.63 of the Abkari Act. If that be so, the appellants shall be convicted under S.63 of the Abkari Act, which reads as follows:- "63. Violation of any rule or order made under the Abkari Act can be punished under S.63 of the Abkari Act. If that be so, the appellants shall be convicted under S.63 of the Abkari Act, which reads as follows:- "63. For offences not otherwise provided for:- Whoever is guilty of any act or intentional omission in contravention of any 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 such willful act or omission with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both". In the circumstances, the finding of the Trial court that the appellants had committed an offence punishable under S.55(a) of the Abkari Act is not sustainable and is liable to be set aside. Ordered accordingly. This Court already found that the offence committed by the appellants would fall under S.63 of the Abkari Act and hence the appellants are found guilty under S.63 of the Abkari Act and they are convicted there under and sentenced to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for six months. Accordingly, the appeal stands dismissed with the modification of sentence. Bail bond executed by the appellants stand cancelled. Copy of this judgment shall be forwarded to the Trial Court forthwith.