BIJU Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act. The prosecution case is that on 21.12.1998 he was found possessing and transporting 3750 ml of Indian made foreign liquor to a prohibited area. He faced prosecution before the court of Session, Pathanamthitta in S.C. No. 294 of 2002. The appellant was a passenger in a bus plying between Pathanamthitta and Pamba. On search in the bus, the Excise Inspector found the appellant carrying 10 bottles of XXX Rum having a total quantity of 3750 ml. The Excise Inspector arrested the accused and seized the 10 bottles of XXX Rum on the belief that the bottles were being transported by the accused to Pamba, a prohibited area. Thus came a complaint against him under Sections 9 and 55(a) of the Kerala Abkari Act. He pleaded not guilty to the charge framed against him by the learned Additional Sessions Judge, Adhoc-I, Pathanamthitta and claimed to be tried.

(2.) The prosecution examined six witnesses in the trial court and marked Exts. P1 to P8 documents and also MO1 to MO3 properties. On an appreciation of the evidence, the learned trial Judge found the accused guilty under Sections 9 and 55(a) of the Kerala Abkari Act. Though the prosecution did not produce any notification showing that Pamba is a notified area, or that the place of detection will come within any notified area, the learned trial judge took judicial notice of the fact that Shabarimala and the surroundings including Pamba fall within notified area. Thus the accused happened to be found guilty under Section 9 of the Kerala Abkari Act also. On conviction under Sections 9 and 55(a) of the Kerala Abkari Act, the appellant was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/-. Aggrieved by the conviction and sentence the accused has come up in appeal.

(3.) When the appeal came up for hearing the learned counsel for the appellant submitted that on facts, the accused has nothing to argue, but he is entitled for the benefit under the law on important legal aspects, that in the absence of a notification produced by the prosecution there cannot be a conviction under Section 9 of the Kerala Abkari Act, and that even assuming the accused was found possessing excess quantity of Indian made foreign liquor purchased from the Kerala State Beverages Corporation, the conviction possible is only under Section 63 of the Kerala Abkari Act.