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Saturday, April 5, 2014

Misquoting of provisions - sec.55 (a) applies other than arrack - after amendment in 1996 , for 10 liters of ID Liquor sec.8 applies but not sec.55 (a) - trial court convicted - High court modified - Apex court held that It is true that the proper Section, which is attracted in the instant case, is Section 8(1) of the Abkari Act, as amended by Act 10 of 1996, not Section 55(a). But, misquoting of the Section or misapplying the provisions has caused no prejudice to the appellant, since the offence has been clearly made out. Offence under Section 55(a) can always be altered to Section 8(1) of Act 10 of 1996, therefore, we find no error in the conviction recorded by the Courts below. However, considering the fact that the appellant has no previous history of committing such offence, we are inclined to modify the sentence to that of six months’ simple imprisonment and a fine of Rs.50,000/-, and in default, to undergo further simple imprisonment for three months.=A.T. Prakashan …. Appellant Versus The Excise Inspector & Anr. …. Respondents= 2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41382

Misquoting of provisions - sec.55 (a) applies other than arrack - after amendment in 1996 , for 10 liters of ID Liquor sec.8 applies but not sec.55 (a) - trial court convicted - High court modified - Apex court held that It is true that the proper Section, which is attracted in the  instant
case, is Section 8(1) of the Abkari Act, as amended by Act 10 of  1996,  not Section  55(a).   But,  misquoting  of  the  Section  or   misapplying   the provisions has caused no prejudice to the appellant, since the  offence  has been clearly made out.  Offence under Section 55(a) can  always  be  altered to Section 8(1) of Act 10 of 1996,  therefore,  we  find  no  error  in  the
conviction recorded by the Courts below. However, considering the fact  that  the  appellant  has  no  previous history of committing such offence, we are inclined to modify  the  sentence
to that of six months’ simple imprisonment and a fine  of  Rs.50,000/-,  and in default, to undergo further simple imprisonment for three months.=
The prosecution case is that on 15.9.1999 at 7.00 a.m., the  appellant
was found in possession of 10 litres of arrack  while  he  was  transporting
the same through the road  in  between  Mokavoor  and  Kypurathpalam.   PW6,
Excise Inspector, registered Crime No.20 of 1999 through  Ext.P3  occurrence
report.   After investigation, he laid the final report before the  Judicial
First Class Magistrate’s Court, Quilandy, where it  was  taken  on  file  as
C.P. No.19 of 2001.  
The learned Magistrate committed the case to the  Court
of Sessions.

4.    Prosecution, in support of the case, examined PW1 to  PW6  and  Ext.P1
to  Ext.P5  were  marked.   MO1  was  identified.   After  the   prosecution
evidence, the accused  was  examined  under  Section  313  of  the  Code  of
Criminal Procedure.  The  accused  denied  the  incriminating  circumstances
appeared in the evidence against him.   On the side of the accused, DW1  was
examined. As already stated, the trial Court, after  appreciating  the  oral
and documentary evidence, convicted the appellant  under  Section  55(a)  of
the Abkari Act, for the offence committed  and  sentenced  him  to  rigorous
imprisonment for two years and six months and a fine of Rs.1  lakh,  and  in
default, further rigorous imprisonment for six  months,  which,  as  already
stated, was modified by the High Court.

5.    Learned counsel submitted that after coming into force of  Act  10  of
1996, the appellant could not have been charge-sheeted under  Section  55(a)
of the Act, but only under  Section  8  of  the  amended  Act  10  of  1996.
Learned counsel also pointed out that the offence was committed in the  year
1999, hence, he could have been charged-sheeted only under Section 8 of  the
Act and not under Section 55(a) of the Act, which would apply only in  cases
of liquor and intoxicating drug other than arrack.

6.    It is true that the proper Section, which is attracted in the  instant
case, is Section 8(1) of the Abkari Act, as amended by Act 10 of  1996,  not
Section  55(a).   But,  misquoting  of  the  Section  or   misapplying   the
provisions has caused no prejudice to the appellant, since the  offence  has
been clearly made out.  Offence under Section 55(a) can  always  be  altered
to Section 8(1) of Act 10 of 1996,  therefore,  we  find  no  error  in  the
conviction recorded by the Courts below.

7.    However, considering the fact  that  the  appellant  has  no  previous
history of committing such offence, we are inclined to modify  the  sentence
to that of six months’ simple imprisonment and a fine  of  Rs.50,000/-,  and
in default, to undergo further simple imprisonment for three months.

8.    The appeal is, accordingly, allowed  to  that  extent,  modifying  the
sentence.
2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41382
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.              OF 2014
        (Arising out of Special Leave Petition (Crl.) No.814 of 2014)


A.T. Prakashan                               …. Appellant

                                   Versus

The Excise Inspector & Anr.             …. Respondents



                               J U D G M E N T


K.S. Radhakrishnan, J.


1.    Leave granted.


2.    This appeal arises out of the judgment of the  Kerala  High  Court  in
Crl. Appeal No.1104 of 2004, by which the High Court modified  the  sentence
awarded by the trial Court to that of rigorous  imprisonment  for  one  year
and to pay a fine of Rs.1 lakh, and  in  default,  simple  imprisonment  for
three more months for an  offence  committed  under  Section  55(a)  of  the
Abkari Act, 1077.

3.    The prosecution case is that on 15.9.1999 at 7.00 a.m., the  appellant
was found in possession of 10 litres of arrack  while  he  was  transporting
the same through the road  in  between  Mokavoor  and  Kypurathpalam.   PW6,
Excise Inspector, registered Crime No.20 of 1999 through  Ext.P3  occurrence
report.   After investigation, he laid the final report before the  Judicial
First Class Magistrate’s Court, Quilandy, where it  was  taken  on  file  as
C.P. No.19 of 2001.  The learned Magistrate committed the case to the  Court
of Sessions.

4.    Prosecution, in support of the case, examined PW1 to  PW6  and  Ext.P1
to  Ext.P5  were  marked.   MO1  was  identified.   After  the   prosecution
evidence, the accused  was  examined  under  Section  313  of  the  Code  of
Criminal Procedure.  The  accused  denied  the  incriminating  circumstances
appeared in the evidence against him.   On the side of the accused, DW1  was
examined. As already stated, the trial Court, after  appreciating  the  oral
and documentary evidence, convicted the appellant  under  Section  55(a)  of
the Abkari Act, for the offence committed  and  sentenced  him  to  rigorous
imprisonment for two years and six months and a fine of Rs.1  lakh,  and  in
default, further rigorous imprisonment for six  months,  which,  as  already
stated, was modified by the High Court.

5.    Learned counsel submitted that after coming into force of  Act  10  of
1996, the appellant could not have been charge-sheeted under  Section  55(a)
of the Act, but only under  Section  8  of  the  amended  Act  10  of  1996.
Learned counsel also pointed out that the offence was committed in the  year
1999, hence, he could have been charged-sheeted only under Section 8 of  the
Act and not under Section 55(a) of the Act, which would apply only in  cases
of liquor and intoxicating drug other than arrack.

6.    It is true that the proper Section, which is attracted in the  instant
case, is Section 8(1) of the Abkari Act, as amended by Act 10 of  1996,  not
Section  55(a).   But,  misquoting  of  the  Section  or   misapplying   the
provisions has caused no prejudice to the appellant, since the  offence  has
been clearly made out.  Offence under Section 55(a) can  always  be  altered
to Section 8(1) of Act 10 of 1996,  therefore,  we  find  no  error  in  the
conviction recorded by the Courts below.

7.    However, considering the fact  that  the  appellant  has  no  previous
history of committing such offence, we are inclined to modify  the  sentence
to that of six months’ simple imprisonment and a fine  of  Rs.50,000/-,  and
in default, to undergo further simple imprisonment for three months.

8.    The appeal is, accordingly, allowed  to  that  extent,  modifying  the
sentence.


                                        ……..……………………J.
                                        (K.S. Radhakrishnan)

                                        ……..……………………J.
                                        (Vikramajit Sen)
New Delhi,
April 04, 2014.

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