REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.        OF 2008 (Arising out of SLP (Crl.) No. 7345/2007)

Nhaliyan Makkil Raveendran …Appellant

Versus

State of Kerala ...Respondent

J U D G M E N T

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

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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-

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(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

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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

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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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