STATE OF KERALA Vs. MATHAI

JUDGEMENT

(1.) THE accused in Summary Trial No. 387 of 1959 of the first Class Magistrate's Court, Moovattupuzha was convicted under S. 51-A of the Travancore Abkari Act IV of 1073 for having been in possession of illicit liquor and was sentenced to pay a fine of Rs. 50/- or in default of payment to undergo simple imprisonment for one and a half months. THE learned Magistrate also ordered that the bottles and glasses recovered in the case will be confiscated and the liquor destroyed. Against this conviction the accused, evidently mindful of the provisions of S. 414, criminal Procedure Code which lays down that in summary trials no appeal will lie where the punishment is only a fine below Rs. 200/- filed a Criminal Revision Petition before the Ernakulam Sessions Court. When the petition was taken up for hearing the learned Public prosecutor of that court raised a preliminary objection regarding the maintainability of the revision. His contention was that the confiscation of the glasses and bottles was also a punishment so that the actual punishment awarded to the accused was a combined one of fine and confiscation which circumstance removed the case from the purview of S. 414 and brought it under s. 415 which provides that an appeal will lie against a sentence awarding a fine combined with any other punishment. This argument found favour with the learned Sessions Judge who dismissed the revision as incompetent. It was also ordered that the disposal of the case on the merits will be considered if and when the accused filed an appeal. THEreupon the accused filed an appeal and was acquitted.

(2.) LATER in Calendar Revision my learned brother Madhavan Nair, J. , was not impressed with the view taken by the learned Sessions Judge that the confiscation was also a part of the punishment and felt that the learned Sessions Judge entertained the appeal without jurisdiction. Notice was therefore issued to the accused to show cause why the acquittal by the Sessions Judge should not be set aside. The State was also notified.

(3.) I therefore hold that the confiscation of bottles and glasses ordered by the learned Magistrate is not a part of the sentence awarded under S. 51-A of the Abkari Act and as such the appeal filed before the Sessions Judge is incompetent.