Possession does not equate to illicit manufacturing; the appropriate charge depends on evidence of the source.

Headnote:
Abkari - Illicit liquor possession - Abkari Act - Section 58, Section 63 - Court found no evidence of illegal manufacturing; conviction only appropriate under Section 63.
Fact of the Case:

The revision petitioner was caught possessing two litres of illicit arrack. After trial, she was convicted under Section 58 of the Abkari Act and sentenced. This was contested in a revision petition after an unsuccessful appeal.
Finding of the Court:

The court observed that there was no evidence indicating that the liquor was illicitly manufactured or sourced illegally, aligning the case with precedents which established that only an offence under Section 63 was applicable.
Issues: Whether the conviction under Section 58 of the Abkari Act was valid given the circumstances of possession.
Ratio Decidendi: The failure to establish evidence of illegal manufacturing necessitated a conviction only under Section 63, as per precedents.
Final Decision: Conviction under Section 58 was set aside; petitioner convicted under Section 63 with a fine of Rs.2,000.

O R D E R

On 13.7.1996, the Excise Inspector, Feroke Range found that the revision petitioner had been carrying two litres of illicit arrack in a jerry can, which was marked as MO1. Consequently a charge sheet was submitted before the Judicial Magistrate of First Class-V, Kozhikode accusing offence under Section 58 of the Abkari Act .

2. Revision petitioner pleaded not guilty. Therefore she was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts.P1, P2 and MO1 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. She denied the incriminating evidence. No defence evidence was let in. On appraisal of the evidence, the learned Magistrate arrived at a finding that the prosecution had succeeded to establish the offence alleged. Consequently the revision petitioner was convicted and sentenced to simple : 2:

imprisonment for six moths and a fine of Rs.15,000/- with a default sentence of simple imprisonment for two months. Though she preferred Crl.A.No.142/2000 before the Sessions Judge, Kozhikode, she was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

3. Sri. P.V. Kunhi Krishnan, the learned counsel appearing for the revision petitioner would submit that he is not assailing the detection of the liquor. According to him, possession of arrack upto 750 mls was then permitted by virtue of Rule 6 of the Abkari Shops (Disposal in Auction) Rules, 1975 and that prosecution has not adduced evidence to establish that the revision petitioner had illicitly manufactured the contraband seized or that it was not purchased from a licensed outlet. Therefore, according to the learned counsel, the offending factor is the excess quantity and only offence under Section 63 is made out and no offence under Section 58 is made out. In support of the argument, the learned counsel for the revision petitioner relied upon the decisions reported in : 3:

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. PW1 is the detecting officer and PW4 is the investigating Officer. Going by their evidence, I find that they had not at all conducted any investigation as to whether the contraband seized was obtained by the revision petitioner from an illegal source or she had illicitly manufactured. In the above circumstance, it is to be presumed that the liquor seized is not illicit. I find merit in the submission made by the learned counsel for the revision petitioner.

5. Going by the facts and circumstances, I find that the case on hand is an identical one to the decision referred, wherein the Division Bench, on almost identical set of facts, 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 liable to be convicted only for offence under Section 63 of the Abkari Act and that a sentence of fine of : 4:

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.

Sd/-

P.S. GOPINATHAN, JUDGE.

Cl /true copy/

P.S. to Judge

: 5:

P.S. GOPINATHAN, J.

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Crl.R.P.NO.1729 OF 2002 .........................................

4th day of October, 2012

O R D E R

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