JOSEKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs. 15,000/- for the offence under Section 58 of the Kerala Abkari Act by the Judicial First Class Magistrate-11, Thamarassery, in CC No. 203/97. The prosecution case was that the accused was in possession of 5 litres of illicit arrack in a plastic can. Though the petitioner filed an appeal before the Sessions Court, confirming the conviction and sentence, it was dismissed. The revision petition is filed, challenging the legality and propriety of the conviction and sentence. The learned Single Judge referred the Criminal Revision Petition to the Division Bench for a decision on the following questions:

(2.) Though the learned Single Judge is of the opinion that there is conflict in the views in Rajeevan and Purushan, we find no such conflict of views. Though there was conflict in the views in Rajeevan and Meenakshi v. Excise Inspector, 1995 1 KerLT 738 , that conflict was resolved by the Division Bench in Surendran v. Excise Inspector, 2004 1 KerLT 404. The decision in Purushan was also considered by the Division Bench in Surendran . The Division Bench disagreed with the view taken in Meenakshi and upheld the view in Rajeevan and Purushan . The learned Single Judge in Rajeevan found that Section 58 of the Kerala Abkari Act deals with possession of illicit liquor or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and on a plain reading or Section 55, it is clear that whoever in contravention of the Act or any Rule or Order made thereunder or of any licence or permit obtained under the Act, imports, exports and incident thereto transports, transits or possesses liquor or any intoxicating drugs, commits an offence punishable under Section 55(a). While arriving at the said view, the learned Singe Judge noted that the words "transports, transits or possesses" in sub-section (a) of Section 55 were substituted by Act 10 of 1975, with the object of regulating movements of liquor and intoxicating drugs throughout the State. The relevant portion of the decision in Rajeevan reads:

(3.) Another learned Single Judge in Purushan , taking note of the said observation in Rajeevan , held that the words "transports, transits or possesses" were not substituted in sub-section (a) of Section 55 by Act 10 of 1975 and in the section, as it originally stood, the words "imports, exports, transports or possesses" were there and only the word "transits" was inserted by the Amendment Act 10 of 1975, in between the words "transports or possesses". That was the only distinction made in Purushan from the view taken in Rajeevan . The view taken in Purushan was also that the possession contemplated under Section 55(a) is in the course of import, export, transport or transit. The relevant portion of the decision in Purushan reads: