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2012 Supreme(Online)(KER) 24547
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
SAROJINI – Appellant
Versus
STATE OF KERALA – Respondent
CRIMINAL REVISION PETITION 1732/2002
A conviction for possession of arrack requires clear evidence of its illicit status; otherwise, exceeding permissible quantity leads to lesser charges under the Abkari Act.
Headnote:
Abkari - Conviction Appeal - Abkari Act - Sections 58, 63 - The court determined that the evidence did not support a conviction for illicit arrack under Section 58, leading to a conviction under Section 63 for exceeding permissible quantity, aligning with precedents.
Fact of the Case:
The accused was convicted for carrying illicit arrack beyond the permissible limit under the Abkari Act. The revision petition contested this conviction, arguing the lack of evidence that the arrack was illicit, as it stated only the excess quantity was an issue.
Finding of the Court:
The court found that the evidence did not sufficiently establish that the arrack was illicitly sourced. The Preventive Officer's testimony was deemed inadequate, leading to the conclusion that only the offense under Section 63 was applicable.
Issues: Whether the accused's possession of arrack constituted an offense under Section 58 of the Abkari Act or merely under Section 63 for exceeding permissible limits.
Ratio Decidendi: The court held that a lack of evidence to classify the arrack as illicit supported a conviction solely under Section 63 for possession exceeding allowed limits, referencing prior case law.
Final Decision: Revision petition allowed in part; conviction under Section 58 set aside, convicted under Section 63 with a fine of Rs. 2,000.
O R D E R
Revision petitioner is the accused in C.C.No.198/1997 on the file of the Judicial Magistrate of First Class-II, Thamarassery. He was found guilty by the learned Magistrate for offence under Section 58 of the Abkari Act , convicted and sentenced to simple imprisonment for six months and a fine of Rs.15,000/- with a default sentence of simple imprisonment for two months. Aggrieved by the above conviction and sentence, she preferred Crl.A.No.151/1999 before the Sessions Judge, Kozhikode. But she was unsuccessful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.
2. The brief case against the revision petitioner is that, on 4.10.1995, PW1, the Preventive Officer attached to Kuttiadi excise range, found the revision petitioner carrying 1500 mls of illicit arrack in a can, which was marked as MO1.
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3. Today when the revision petition came up for hearing, Sri. P.V. Kunhi Krishnan, the learned counsel for the revision petitioner would submit that he is confining his argument that only offence under Section 63 of the Abkari Act is established and no offence under Section 58 is established. The argument is with a plea that at the time of occurrence possession of arrack by a person up to 750 mls was permitted as per Rule 6 of the Abkari Shops (Disposal in Auction) Rules, and in this case quantity seized was 1500 mls. According to the learned counsel, other than the vague statement that it is illicit arrack, no evidence was let in to show that the contraband seized was illicit arrack. Therefore, it is to be treated as arrack obtained from lawful source and the petitioner is answerable only for excess quantity. In support of the argument, the learned counsel for the revision petitioner relied upon the decisions reported in Surendran v. Excise Inspector ( 2004 (1) KLT 404 ), Mohanan v. State of Kerala ( 2007 (1) KLT 845 ) and an unreported decision dated 21.8.2012 in Josekutty v. State of Kerala (Crl.R.P.No.220/2001).
4. Having gone through the judgments impugned : 3:
and the evidence on record through which I was taken by the learned counsel, I find merit in the submission made by the learned counsel forthe revision petitioner. PW1, the Preventive Officer, who detected the crime, had deposed that the revision petitioner had been carrying illicit arrack. How he came to a conclusion that the liquor seized was illicit arrack is not disclosed by any evidence. He had not conducted any investigation on that aspect. PW4, who conducted the investigation, also has not investigated as to whether the revision petitioner had procured the same from a licensed outlet or whether it was illicitly manufactured or obtained from an illicit manufacturer. In the above circumstance, it is to be inferred that the arrack seized was not illicit. But it exceeds the permissible quantity.
5. Going by the facts and circumstances, I find that the case on hand is an identical one to the decisions referred wherein, on identical set of facts, the Division Bench had held that only offence under Section 63 is established and no offence under Section 58 is established. I find no reason to deviate from the precedents above mentioned. The revision petitioner is : 4:
liable to be convicted only for offence under Section 63 of the Abkari Act and that a sentence of fine of Rs.2,000/- would meet the ends of justice.
In the result, this revision petition is allowed in part. While setting aside the conviction and sentence under Section 58 of the Abkari Act , the revision petitioner is convicted under Section 63 of the and sentenced to pay a fine of Rs.2,000/- (two thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for a period of three months. The trial court shall see the execution of sentence and report compliance.
P.S. GOPINATHAN, JUDGE.
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P.S. GOPINATHAN, J. .......................................
Crl.R.P.NO.1732
