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.
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.
advocatemmmohan 
Discussion
Comments are closed.