Biju vs S.I. of Police, Ramankary and State

S. Siri Jagan, J.—The accused in Calendar Case No. 400/1997 before the Court of the Judicial Magistrate of First Class, Ramankary, is the petitioner herein. He was convicted by the Magistrate u/s 55(a) of the Abkari Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 25,000/- for an offence u/s 55(a) of the Abkari Act, with a default sentence of simple imprisonment for three more months. Crl. Appeal No. 31/1999 filed by the petitioner before the Additional Sessions Judge, (Fast Track) Adhoc-1, Alappuzha was dismissed. The petitioner is challenging the orders of the courts below.

The prosecution case in brief is as follows:

On 07.02.1997 at 8 p.m. the accused was found possessing 8 plastic packets containing 80 ml. each of arrack for sale in his teashop situated in Ward No. 7 of Veliyanad Panchayat and thereby the accused was alleged to have committed the offence punishable u/s 55(a) of the Abkari Act. One of the contentions raised by the petitioner is that as laid down by this Court in several decisions mere possession of arrack will not attract Section 55 (a), unless the same is coupled with export, import or transit of liquor. The petitioner relies on the following decisions of this Court in support of the said contention:

Surendran Vs. Excise Inspector, , Sudhepan v. State of Kerala (2006 (1) KLT SN 52 )(C. No. 72), Jose @ Babu Vs. State of Kerala, S.I. of Police, , Mohanan v. State of Kerala (2007 (4) KLT 408), Narayanan Nair Vs. State of Kerala,

I shall consider that question first since if I accept that contention it may not be necessary to go into the other contentions at this juncture, since in that event I may have to remand the matter for fresh consideration by the trial court.

Heard the learned Public Prosecutor also on the question.

The incident in this case happened on 7.2.1997. Section 8 was reintroduced in the Abkari Act by the Abkari (Amendment) Act, 1996 (Act 4 of 1996) and the same came into force with effect from 1.4.1996. Before the amendment of that provision with effect from 3.6.1997, by Act 16 of 1997, the said Section, what is relevant for our purpose, read as follows:

Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack-No person shall manufacture, import, export, transport, transit, possess, store, distribute, bottle or sell arrack in any form.

Section 55 (a) of the Abkari Act reads as follows:

For illegal import, etc:- Whoever in contravention of this Act or of any rule or order made under this Act.

(a) import, exports, transports, transits or possesses liquor or any intoxicating drug; or

xxxxx

(1) for any offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and

(2) for an offence falling under clause (d) or clause

(e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.

A reading of Section 55 (a) would show that the same relates to export, import or transit of liquor. Of course, for export, import or transit of liquor essentially possession should also be there. Therefore, possession, in the course of export, import or transit can only come within the purview of Section 55 (a). Possession simplicitor can come only u/s 8 or u/s 58 of the Act. I am fortified in this view by the decisions quoted above. Therefore, I am of opinion that the prosecution and conviction u/s 55 (a) is clearly unsustainable. But that does not mean that the petitioner should be acquitted on that ground straight away. In view of Sections 221, 386, 391 & 484, I am of opinion that the petitioner should be tried for an offence u/s 8 or 58, whichever is applicable. For that purpose, the matter has to be remanded to the trial court for framing charge under either or both of those Sections and for retrial. Accordingly, the impugned judgments are set aside. The Magistrate is directed to re-try the case, after framing fresh charge under either Section 8 or 58, or both whichever is applicable and after giving opportunity to both sides to adduce evidence, if necessary.

The Crl. R.P. is disposed of as above.