High Court of KeralaSingle Judge2017-01-09Appeal allowed in part

Ammini v. State of Kerala

Case / Petition Number:CRL.A.No.2383 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2017-01-09
Court Decision / Holding: Appeal allowed in part. The convictions under Sections 55(a) and 55(b) of the Abkari Act cannot be sustained and are set aside. The appellant is convicted only under Section 63 of the Abkari Act for possession beyond the permissible quantity, with two months simple imprisonment and a fine of Rs. 5,000 (default one month). The period of detention from 20.2.2007 to 7.3.2007 is set off under Section 428 CrPC. The appellant shall surrender before the trial court on 1 March 2017 to suffer the sentence.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

Ammini

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• P. Vijaya Bhanu
• M. Revikrishnan

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• C K Prasad (Government Pleader)

Case Synopsis & Summary

Ammini, the appellant, was convicted by the trial court for possession of 32 litres of Indian Made Foreign Liquor in her shop, in contravention of the Abkari Act. The trial court held her guilty under sections 55(a) and 55(b) and sentenced five years’ rigorous imprisonment along with a fine of Rs. 1,00,000 and a default clause. On appeal, the High Court scrutinized whether the facts established the offence under 55(a), which targets possession in the course of illegal import, export or transport. The appellant argued there was no evidence of illegal import or transport and that a bottle’s lack of the Kerala State Beverages Corporation seal does not prove import. Citing Mohanan v. State of Kerala, Venu K.V. v. State and Tippu Mohammed v. State of Kerala, the court noted that conclusive proof of import is required and that absence of a seal cannot alone establish violation. The court also discussed that the bottles bore labels indicating manufacture in Pondicherry, but held that labeling alone does not discharge the state’s burden. Consequently, the court set aside the conviction under 55(a) and (b). However, the appellant was found to possess liquor beyond the permissible quantity during the relevant period under SR 725/03, and thus was convicted under Section 63 of the Abkari Act. The appeal was allowed in part; she was directed to surrender on 1 March 2017, with detention already served to be set off.

Provisions of Law Cited

Abkari Act Sec 55(a)Abkari Act Sec 55(b)Abkari Act Sec 63Code of Criminal Procedure Sec 428S.R.O. No.725/03

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the appellant submitted that there is no evidence that the appellant possessed contraband in the course of illegal import, export or transport, so Section 55(a) cannot be attracted. It was argued there is no presumption that all liquor bottles without the State Beverages Corporation seal are imported from other states, and hence absence of a seal does not prove import. Reliance was placed on Mohanan v. State of Kerala, Venu K.V. v. State and Tippu Mohammed v. State of Kerala to show that the prosecution must prove illegal import/transport; labeling alone cannot discharge the burden. The absence of evidence of import, and lack of clear proof of sale/possession for sale, undermines the 55(a) charge.

Contentions of Respondents

State contended that possession of 32 litres in a shop violated the Abkari Act and that labeling or lack of a seal does not automatically prove import; the evidence suggested possession beyond permissible quantities under SR 725/03. The State relied on Exts P1–P12 and MO1–MO34 to argue that the appellant possessed contraband for sale, supporting at least the 63(1) offence and, to the extent possible, the 55(a)/(55b) claims, though the court ultimately assessed the sufficiency of proof for those sections.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohanan v. State of Kerala	2007 (1) KLT 845	Positive	Supports the proposition that Sec 55(a) applies only when there is illegal import/transport or possession during import; used to challenge the applicability of 55(a) here.
Venu K.V. v. State	2013(1) KLJ 7	Positive	Rejects blanket presumptions that unlabeled bottles are imported; supports that absence of State seal does not prove import.
Tippu Mohammed v. State of Kerala	2015 (1) KLD 59	Positive	Cautions that labeling alone cannot discharge the burden to prove import; reinforces requirement for evidence of import.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938 CRL.A.No. 2383 of 2008 ( ) --------------------------SC 508/2007 of SPL. COURT (NDPS ACT CASES), THODUPUZHA APPELLANT/ACCUSED: --------------------------------- AMMINI, D/O.KUNJAN, PAPPATHIYIL HOUSE, PARATHODU KARA, KONNATHADI VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT/COMPLAINANT: ---------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. GOVERNMENT PLEADER, SHRI C K PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.2383 of 2008 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of January 2017 ## JUDGMENT The trial court convicted the appellant under Sections 55(a) and (b) of the Abkari Act and sentenced her thereunder to rigorous imprisonment for 5 years and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for six months. 2. The prosecution allegation is that on 16.2.2007 at 2.30 p.m., the appellant was found in possession of 32 litres of Indian Made Foreign Liquor, in her shop for the purpose of sale, in contravention of the provisions of the Abkari Act. The appellant was arrested from the spot. Crl.A 2383/2008 : 2 : 3. Heard. 4. Before the trial court, PW1 to PW7 were examined and Exts.P1 to P12 were marked for the prosecution, besides identifying MO1 to MO34. No evidence was adduced from the side of the appellant. 5. The learned counsel for the appellant has argued that there is no evidence before the court to hold that the appellant was found in possession of the contraband in the course of illegal of import, export or transport and in the circumstances, the offence under Section 55(a) of the Abkari Act is not attracted. It has been was further argued by the learned counsel for the appellant that there is no presumption that all liquor bottles without the seal of the State Beverages Corporation are imported from other Crl.A 2383/2008 : 3 : States and in the said circumstances, the contraband seized from the appellant cannot be said to have been imported from the other states and consequently, no offence has been committed by the appellant. 6. In Mohanan v. State of Kerala [2007 (1) KLT 845], the court held that S.55(a) of the Abkari Act is applicable only when persons illegally import or transport liquor or in possession of liquor while illegally importing. In this case, there is no evidence to show that the appellant was found in possession of the contraband while she was illegally importing, exporting or transporting. This Court in Venu K.V. v. State [2013(1) KLJ 7] held that there cannot be any presumption that all liquor bottles without the seal of the State Beverages Corporation are imported Crl.A 2383/2008 **==> picture [29 x 13] intentionally omitted <==** from Mahe or other State. In this cases, the bottles seized did not contain the sticker of the Kerala State Beverages Corporation. However, merely because the sticker of Kerala State Bevereges Corporation was not found on the bottles seized in this case, it cannot be said that the said bottles were imported from outside the state, particularly when there is no evidence before the court to show that the contraband articles involved in this case were imported from outside the State. 7. The bottles seized in this case contained the label to the effect that the said articles were manufactured in Pondicherry. In Tippu Mohammed v. State of Kerala [2015 (1) KLD 59], the court held that in the absence of any evidence to prove that the liquor allegedly possessed by the Crl.A 2383/2008 : 5 : accused was imported in violation of the provisions of the Act, the mere production of bottles with the labels cannot discharge the prosecution of its burden to prove the offence under Section 55(a) of the Abkari Act. In this case, the label would show that the bottles were manufactured in Pondicherry. However, in the absence of any evidence to show that the liquor was imported into the State by the appellant, it cannot be said that merely because it contained the said label, the offence under section 55(a) of the Abkari Act is attracted. The above discussion would clearly show that the offence under Section 55(a) of the Abkari Act could not be established by the prosecution in this case. There is also no evidence before the court to prove that the liquor seized from the appellant were Crl.A 2383/2008 **==> picture [29 x 13] intentionally omitted <==** possessed by the appellant for the purpose of sale. There is also no evidence to prove that the appellant manufactured the contraband. In view of the above reasons, the offence under Sections 55(a) and 55(b) of the Abkari Act cannot be attracted in this case. In the said circumstances, the conviction and sentence passed by the courts below under Section 55(a) and (b) of the Abkari Act cannot be sustained and consequently, I set aside the same. 8. The appellant was found in possession of 32 litres of Indian Made Foreign Liquor. The permissible quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was three litres as per S.R.O. No.725/03. Therefore, the appellant was found in possession of excess quantity of Indian Made Foreign Crl.A 2383/2008 : 7 : Liquor than what was permissible under law during the period in question. Therefore, the appellant has, no doubt, committed the offence under Section 63 of the Abkari Act. Accordingly, I convict the appellant under Section 63 of the Abkari Act. 9. The appellant was in custody from 20.2.2007 to 7.3.2007 in connection with this case. The appellant is a lady aged presently 66 years. Considering the facts and circumstances of the case, including the age of the appellant, I am of the view that the appellant can be sentenced to simple imprisonment for two months and a fine of Rs.5,000/- (Rupees five thousand only) and in default to simple imprisonment for one month under Section 63 of the Abkari Act to meet the ends of the justice Crl.A 2383/2008 : 8 : and accordingly, I order so. The appellant is entitled to set off for the period of her detention in connection with this case under Section 428 of the Code. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the trial court on 1.3.2017 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/9.1..2017_ _// True Copy //_ _PA to Judge_