ORDER
The petitioner was concurrently held guilty of the offence punishable under section 55(a) of Abkari Act and was sentenced to undergo simple imprisonment for six months and to pay Rs. 25,000/- as fine.
2. The case of the prosecution is that on 4.6.1995 at about 4.45 pm, the Preventive Officer and other officials attached to the Excise Circle Office, Tirur, found the petitioner carrying a can of a capacity of 2= litres, which contained in it 1.820 litres of illicit arrack. The accused was arrested then and there. Sample of 180 ml was taken. The contraband article was sealed and seized as per Ext.P1 mahazar. Though PW3, the independent witness, turned hostile, the evidence given by the detecting officer gets corroboration from the contemporaneous records. When the sample was analysed it was found to contain only 18.15% by volume of Ethyl Alcohol and as such it was found to be illicit liquor. Therefore, the courts below rightly found that the petitioner was in possession of 1.820 litres of illicit arrack.
3. The learned counsel for the petitioner submits that there is no evidence to show that the petitioner was transporting or keeping possession of the same in the course of transport, import or export and as such the offence may not fall under section 55(a) of the Abkari Act, but would attract only section 58 of the Abkari Act, since the liquor was certified to be illicit. There was no reason to hold that the liquid was licit or that it was not illegally imported or manufactured. Since the punishment prescribed for the offence under section 58 is lesser, the conviction can be had under section 58 of Abkari Act without altering the charge. The incident was of the year 1995. As the law then stood the punishment prescribed for the offence under section 58 of Abkari Act was imprisonment up to one year and fine which shall not be less than Rs. 15,000/-.
4. In the result this Criminal Revision Petition is disposed of as stated below:
The conviction and sentence passed against the petitioner for offence under section 55(a) of Abkari Act are set aside. Instead, the petitioner is convicted for the offence punishable under section 58 of Abkari Act. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs. 15,000/- as fine and in default of payment of the same, he will undergo simple imprisonment for three months.
The petitioner is granted time till 30.11.2012 to pay the fine amount and to undergo imprisonment till the rising of the Court.
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