Asokan vs The Excise Inspector, Vadakara Excise Range and State of Kerala

Justice N.K. Balakrishnan

The petitioner was concurrently found guilty and convicted for the offence punishable under Sec. 55(a) of Abkari Act. He was sentenced to undergo S.I. for six months and to pay Rs. 25,000/- as fine and in default to undergo S.I. for six months. This revision is directed against the said conviction and sentence. The case of the prosecution is that on 29.06.1996 at about 7.50 AM when PW3 and others were on duty at Azhiyoor check post, they checked the bus KL-11-D 2772, which was coming from Mahe towards Vadakara. When the bus was checked, the petitioner was found in possession of three bottles of Honey drops No. 1 brandy of 750 ml. each. Thus, the total quantity was 2.250 litres. It was found that those liquor bottles were intended to be used only in Mahe of Pondicherry (Puthucherry) State. The accused was arrested. The contraband articles were seized as per Mahazar. When the sample was sent for chemical examination, it was found to be of the strength of IMFL.

Accepting the evidence given by PW1 to PW5 and Exts.P1 to P3 and material objects seized in the case the court below found the petitioner guilty and he was convicted and sentenced as mentioned above. The appellate court after reappraisal of the evidence concurred with the conviction and sentence.

Learned counsel for the revision petitioner submits that all the three bottles were stated to be of 750 ml each contained only IMFL, which was not intended to be sold. Learned counsel submits that the evidence adduced by the prosecution is not sufficient to hold that the petitioner was in conscious possession of the same. Learned public prosecutor submits that the courts below have analysed the evidence given by the detecting officer which was supported by another officer. Three liquor bottles did not contain any sticker or label indicating the sale of the same from KSBC shop or outlet. Besides, sticker or label seen on those bottles indicated that it was intended to be sold or used only in Mahe. Therefore, the contention that the petitioner importing 2.250 litres of IMFL from the State of Puthucherry to the State of Kerala is acceptable. Thus the conviction is only to be confirmed.

Learned counsel for the revision petitioner submits that considering the fact that only three bottles of 750 ml were found in the possession of the petitioner and since the prosecution has no case that the petitioner was a habitual offender, jail sentence may be avoided. As the law then stood, the punishment prescribed was imprisonment upto 2 years and to fine which shall not be less than Rs. 25,000/-. The incident took place in the year 1996. Hence, I find that the sentence is to be modified. In the result, this criminal revision petition is disposed of as stated below:

The conviction is confirmed. While confirming the sentence of fine imposed and the default sentence awarded by the courts below, substantive sentence is reduced to imprisonment till the rising of the court, if any part of the fine amount has already been remitted, the petitioner will remit the balance fine amount within two months from today. He will surrender before the learned Magistrate to undergo the imprisonment till the rising of the court within that period.