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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

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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

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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

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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.