KM ABOOBACKER Vs. STATION HOUSE OFFICER

JUDGEMENT

(1.) The appellants are found guilty by the trial court under Section 55(a) read with Section 55(i) of the Abkari Act. The allegation against the appellants as revealed from the prosecution evidence is that they were found transporting 48 bottles, each containing 180 ml Coconut Fenny, a foreign liquor, without having any transport permit under the provisions of the Abkari Act and the Rules framed thereunder. As per the charge filed by the Circle Inspector of Police, Kumbala, on 13-2-1998 at about 2.45 a.m. the appellants were found travelling in a motor cycle and the 1st appellant was riding the motor cycle and the 2nd appellant was holding a cardboard box and on stopping the vehicle, it was found that the box contained 48 bottles of Coconut Fenny and on seizing the cardboard box on preparing Ext. P1 seizure mahazar, the appellants were arrested. Further it is alleged that, the samples were taken for analysis and as per Ext. P5 chemical report, it was reported that the samples contained ethyl alcohol by 41.49% by volume and the samples analysed was reported as Fenny. To prove the charge, prosecution examined five witnesses and relied on Exts. P1 to P5. No material objects were produced before the court either as sample seized or contraband alleged to have been seized from the appellants. When the appellants were questioned under Section 313 of the Code, they denied the charge and stated that the case was foisted against them. The trial court found the appellant guilty under Section 55(a) of the Act and convicted them thereunder and sentenced to undergo R.I. for three years each and to pay a fine of Rs. One lakh each with default sentence of pay of fine to undergo R.I. for six months each. Challenging the judgment of the trial court, the counsel appearing for the appellants submits that the finding of the trial court that the appellants committed an offence under Section 55(a) of the Abkari Act is not legally tenable. Secondly, it is contended by the counsel that even accepting the prosecution evidence, the appellants can be punished only under the provisions of Section 63 of the Abkari Act for violating the provisions of Foreign Liquor Rules and not under Section 55(a) of the Act. Finally, it is contended that as per the charge, the appellants were found in possession of 48 bottles of foreign liquor each containing 180 ml and as per the notification issued by the Government; existed at the relevant time allows a person to possess 4.5 liters of foreign liquor or to transport the same without any permit or license issued under the provisions of the Act and the Rules framed thereunder. If so, the total quantity alleged to have been transported or possessed by the appellants is only 8.460 litres of foreign liquor. Hence, no offence has been committed by he appellants. To substantiate this contention, the learned Counsel relies on a judgment of this Court reported in Prasanth v. State of Kerala, 2002 1 KerLT 628. The prosecution case against the appellants was that they were found transporting rather in possession of 48 bottles of Coconut Fenny, an Indian made foreign liquor, on the date of the incident without any license or permit. The trial court relying on the evidence of Pws 1 to 5 found that the prosecution is succeeded in proving the fact that the appellants were found transporting or possessing 48 bottles of Indian made foreign liquor. On considering the reasons stated by the trial court for believing the prosecution witnesses, the evidence of the prosecution witnesses is not suffering from any infirmity and their evidence is acceptable. This Court find that the finding of the trial court is justifiable on facts and evidence. The next question to be considered is whether the trial court is justified in finding that the appellants have committed any offence punishable under Section 55(a) of the Abkari Act. The prosecution case is that the appellants were in possession or transporting Indian made foreign liquor without any permit. If so, the alleged transport or possession of the foreign liquor may not come under Section 55(a) of the Abkari Act. This view is supported by a Bench decision of this Court reported in Mohanan v. State of Kerala, 2007 1 KerLT 845. Further, the prosecution charge was that the appellants were found transporting in a motor cycle 48 bottles of Fenny. Fenny is a foreign liquor which is defined under the provisions of Foreign Liquor Rules. If so, finding of the trial court that either transporting or possessing Indian made foreign liquor is punishable under Section 55(a) of the Abkari Act is not legally tenable. Hence, finding of the trial court that the appellants have committed an offence under Section 55(a) of the Abkari Act, is not legally tenable. Hence, finding of the trial court that the appellants have committed an offence under Section 55(a) of the Abkari Act is hereby set aside and the conviction and sentence ordered against the appellants are also hereby set aside.

(2.) The next question to be considered is what would be the offence committed by the appellants for violating the Rules framed under the provisions of the Abkari Act. In this context, it is to be noted Rule 11 of the Foreign Liqudr Rules, which reads as follows:

(3.) It would show that transporting of foreign liquor in excess of the quantity notified by the Government under Sections 10 and 13 of the Act without any permit for the same purpose issued by the authority is in violation of the Rules. Further, as per Rule 11A it is stated that possession of foreign liquor exceeds the quantity as notified by the Government is a violation of the Rules. Rule 11A reads as follows: