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2016 Supreme(Online)(KER) 38399
HIGH COURT OF KERALA
B.KEMAL PASHA, J
PAPPACHAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/130/2009
SRI.GEORGE SEBASTIAN SRI.T.RENJIT KUMAR
Possession of excess duty-paid liquor purchased from a legal source constitutes an offense under Section 63, not Section 58, of the Abkari Act.
Headnote:
Conviction - Abkari Act - Sections 58, 63 - The court refrained from upholding a conviction under Section 58 for possession of excess liquor and instead convicted under Section 63, determining that the possession did not violate duty payments.
Fact of the Case:
The appellant was convicted for possessing excess Indian Made Foreign Liquor, exceeding legal limits. The prosecution argued that this constituted an offense under Section 58 of the Abkari Act, while the defense contended it should only be viewed under Section 63.
Finding of the Court:
The court found that while the appellant possessed liquor in excess, the circumstances indicated that the liquor was purchased from a legal distributor, implying that the offense fell under Section 63, not Section 58.
Issues: Whether the possession of excess Indian Made Foreign Liquor constitutes an offense under Section 58 or Section 63 of the Abkari Act.
Ratio Decidendi: Possession of excess quantity of duty-paid liquor from an authorized source cannot amount to an offense under Section 58, and is more appropriately treated under Section 63 of the Abkari Act.
Final Decision: Conviction under Section 58 set aside; convicted under Section 63 with reduced penalty.
J U D G M E N T
The appellant is the accused in S.C.No.463/06 of the Additional Sessions Court, North Paravur, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of ₹1 lakh, in default, to undergo rigorous imprisonment for six more months.
2. The prosecution case is that on 21.12.2004 at
6.45 p.m. a search was conducted at the house of the appellant and he was found storing 7.750 litres of Indian Made Foreign Liquor purchased from the Kerala State Beverages Corporation. Apparently, it was excess quantity of Indian Made Foreign Liquor which a person could have procured and possessed.
3. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P9 were marked. MOs.1 to 5 series were identified. Ext.D1 was also marked on the side of the defence. The court below found the accused guilty of the offence punishable under Section 58 of the Abkari Act , convicted him thereunder and sentenced him as aforesaid.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. PW1 Excise Inspector, Varapuzha Excise Range detected the offence. The contraband was seized through Ext.P5 mahazar. The contents of Ext.P5 clearly shows that the said quantity of Indian Made Foreign Liquor was purchased from the Kerala State Beverages Corporation. Labels of the Beverages Corporation were seen on the bottles. Even according to PW1, liquor bottles seized from the house of the appellant contained the labels of the Beverages Corporation.
6. The court below found the appellant guilty of the offence punishable under Section 58 of the Abkari Act by considering that the appellant was in conscious possession of the contraband.
7. The learned counsel for the appellant is presently challenging the conviction of the appellant by the court below for the offence under Section 58 of the Abkari Act and the sentence imposed on the appellant. According to the learned counsel for the appellant, even if the facts are admitted, this is case wherein a person was found to be in possession of excess quantity of Indian Made Foreign Liquor purchased from the Kerala State Beverages Corporation and in such case it could only invite an offence punishable under Section 63 of the .
8. Relying on Mohanan v. State of Kerala [2007 (1)
KLT 845] rendered by the Division Bench of this Court and Sobichan v. State of Kerala [2013(3) KLT SN 89(C. No.93)], the possession of excess quantity of Indian Made Foreign Liquor purchased from the Beverages Corporation can only invite an offence punishable under Section 63 of the Abkari Act . There is no case that the contraband was not duty paid. Matters being so, the conviction and sentence passed by the court below for the offence punishable under Section 58 of the are liable to be set aside. Instead, the appellant is liable to be convicted under Section 63 of the .
In the result, this Criminal Appeal is allowed in part, and the conviction and sentence passed by the court below under Section 58 of the Abkari Act are set aside. Instead, the appellant is found guilty of the offence punishable under Section 63 of the and he is convicted thereunder. The appellant is sentenced to pay a fine of ₹5,000/-, in default, to undergo simple imprisonment for two months.
