MADHAVAN; PONNAPPAN, MURUKAN @ KUTTAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) On the allegation that on 11/12/1998 at about 6.30 p.m. the accused found conducting sale of Indian Made Foreign Liquor they were arrested and seized 5 litres 625 ml. of foreign liquor, as the accused two in numbers committed the offence punishable under Section 55(a) and 58 of the Abkari Act. The trial court by the impugned judgment dated 21/7/2005 in S.C.No.2037 of 2004 rejected the prosecution case that the accused have committed the offence under Section 55(a) of the Abkari Act, but accepted the prosecution allegation against the accused that they committed the offence under Section 58 of the Abkari Act and accordingly they are sentenced. Challenging the above finding and order of conviction and sentence the accused in the above Sessions Case preferred the present appeal.

(2.) On the appearance of the accused the court below framed a formal charge against the accused for the offences punishable under Sections 55(a) & 58 of the Kerala Abkari Act and when the said charge read over and explained to them they denied the same and pleaded not guilty. Thereafter the prosecution examined PWs.1 to 6 and produced Exts.P1 to P5 documents and Mos.1 to 8 series as material objects. The trial court finally found that, the prosecution would clearly establish that the accused were found in conscious possession of 5 ltrs. 625 ml. of illicit liquor for sale and hence the prosecution has succeeded in establishing the offence under Section 58 of the Kerala Abkari Act and the possession of illicit liquor is not during the course of the activities like import, export and transport as contemplated under Section 55 of the Kerala Abkari Act and hence found that the prosecution has failed to prove the ingredients of Section 55(a) of the Abkari Act. Consequently, the learned Judge found that the accused are guilty of the offence under Section 58 of the Abkari Act and not found guilty of the offence under Section 55(a) of the Abkari Act. Accordingly, while convicting the appellants for the offence under Section 58 of the Abkari Act, they are acquitted for the offence under Section 55(a) of the Abkari Act. On such conviction, accused Nos.1 and 2 are sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/- each, in default of payment of fine, they are directed to undergo rigorous imprisonment for further period of six months each. Set off is allowed. Challenging the above finding and order of conviction and sentence the accused in the above Sessions Case preferred this appeal.

(3.) Heard Sri.G.Sudheer Karakonam, the learned counsel for the appellant and Sri.N.Suresh the learned Public Prosecutor for the State.