Nhaliyan Makkil Raveendran vs State Of Kerala

State of Kerala ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of learned

Single Judge of the Kerala High Court dismissing the Revision

Petition filed by the appellant. On the allegation that on

13.8.1999 the accused was found to be in possession of 4 litres of arrack made in Karnataka in 40 packets, each

containing 100 ml. It was held that the accused was guilty of

offence punishable under Section 55(a) of the Kerala Abkari

Act, 1077.

3. Law was set into motion as the prosecution was of the

view that the accused was in possession of liquor in

contravention of the provisions of the Act. Five witnesses were

examined to further the prosecution version. Accused pleaded

innocence. Learned Principal Assistant Sessions Judge,

Thalassery found the appellant guilty for commission of

offence and sentenced him to under simple imprisonment for

three years and also to pay a fine of Rs.1,00,000/- with

default stipulation. An appeal was preferred before the

Sessions Court, Thalassery which was dismissed. In the

revision, the basic contention was that the alleged offence was

committed on 13.8.1999 the seized property was produced in

the Court on 16.8.1999. There was three days delay which

was fatal. Before the High Court it was alternatively

submitted that the sentence as imposed was high. The High

2 Court noted that the offence was detected on 13.8.1999 by

PW-4, a Sub-Inspector of Police, Iritty and his police party

while they were on patrol duty. While they reached near the

bus stop the accused appellant was seen alighting from a bus

with cloth bag in his hand. Getting suspicious PW-4 tried to

stop him. The accused hurriedly crossed the road and ran

away. He was chased and apprehended by the police party

and on examination of the cloth bag in his hand it was found

that the same contained 40 packets of some liquid suspected

to be some illicit arrack. The contraband liquor was seized.

The contents of two out of 40 packets were emptied into a

bottle and sealed. Before the sample bottle was seized, the

accused as well as the properties were taken to the police

station where the registration of the case was done. The

articles were seized at 6.40 in the afternoon. Samples were

produced in Court on 16.8.1999 and till then they were in safe

custody. The letter of the Magistrate clearly shows that when

the articles were produced before him they were packed and

sealed.

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4. The survey of the Chemical Analyst (Exh. P-6) shows that

seal of the sample bottle tallied with the specimen seal

separately sent. It was noted that possession of arrack, import

and export transaction, storage and sale of arrack in the State

of Kerala was totally banned w.e.f. 3.6.1997. The appellate

authority while upholding the conviction dismissed the

appeal, but the sentence was reduced to one year. In revision,

no interference was done by the High Court.

5. Learned counsel for the appellant submitted that the

evidence on record does not make out a case for conviction

and in any event the sentence is harsh.

6. Learned counsel for the respondent-State on the other

hand supported the order.

7. Section 55 of the Act so far as relevant reads as follows:

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

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

(b) manufactures liquor or any intoxicating drug;

(c) xxx

(d) taps or causes to be tapped any toddy-

producing tree, or

(e) draws or causes to be drawn toddy from any tree; or

(f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or

(g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or

(h) bottles any liquor for purposes of sale; or

(i) sells or stores for sale liquor or any intoxicating drug;

shall be punishable

(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

5 year, or with fine which may extend to ten thousand rupees, or with both.

Explanation:- For the purpose of this section and section 64A, "intoxicating drug" means any intoxicating substance, other than a narcotic drug or psychotropic substance regulated by the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), which the Government may by notification declare to be an intoxicating drug."

8. Undisputedly, the case at hand is one which is covered

by Section 55(a) of the Act. Two types of punishments are

provided in section 55. One is relatable to offence other than

the offence falling under clause (d) or clause (e) where the

imprisonment is extended to 10 years and with fine which

shall not be less than rupees one lakh. Offence falling under

clause (d) and (e) carry lesser term of sentence which may

extend to one year or alternatively with fine which may extend

to rupees ten thousand or with both.

9. The words "two years and with fine which shall not be

less than twenty five thousand rupees, and" have been

6 substituted by Act 16 of 1997 w.e.f. 3.6.1997 with the

expression "ten years and with fine which shall not be less

than one lakh and". There is no minimum sentence provided

but the outer limit of the punishment is 10 years. At the same

time imposition of fine of rupees one lakh is statutorily

provided without any exception.

10. Considering the peculiar facts of the case we direct

reduction of the sentence to 9 months. The amount of fine

which is stated to have been deposited is maintained.

11. The appeal is disposed of accordingly.

.................................J. (Dr. ARIJIT PASAYAT)

................................J. (P. SATHASIVAM) New Delhi, May 5, 2008

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