K. GANGADHARAN @ GANGAN, S/O. SANKARAN NAIR, @ RAYARAPPAN, LIJI NILAYAM, P.O. PUTHUR, VADAKARA Vs. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) THE petitioner is the 2nd accused in Sessions Case No. 422/1999 before the Assistant Sessions Judge, Vatakara. He was prosecuted along with another person for offence punishable under Section 55(a) of the Abkari Act. The prosecution case as contained in paragraph 2 of the judgment of the Magistrate is as follows:

(2.) I have heard the learned Public Prosecutor also. As rightly pointed out by the learned counsel for the petitioner, the prosecution has no case that the possession of the liquor by the petitioner is in the course of import, export, transport or transit. No allegations have been made and no evidence had been led also to the effect that the petitioner possessed liquor with the knowledge that it has been illegally imported. Therefore, in view of the decision of the two Division Bench decisions in Surendran's case (supra) and Cr.R.P. No. 220/2001, the petitioner cannot be prosecuted either for an offence under Section 55(a) of the Abkari Act or under Section 58 of the Abkari Act. But, of course, the bottles seized from the petitioner did not contain the seal of the Beverages Corporation. Therefore it cannot be said that the possession of the liquor by the petitioner is legal. Therefore, at least an offence under Section 63 of the Act is attracted. In the above circumstances, I acquit the petitioner of the offence under Section 55(a) and convict him under Section 63 of the Abkari Act. I sentence him to pay a fine of Rs. 5,000/ -(Rupees five thousand only). The judgments of the lower courts are modified as above and the Criminal Revision Petition is disposed of.