Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** **CRL.A.No. 1124 of 2011 (A) ---------------------------** **SC 409/2008 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE** **APPELLANT(S)/2ND ACCUSED:** **------------------------** **ASOKAN, CHANDROTH HOUSE, P.O.ORKATTERY, VIA, VATAKARA KOZHIKODE DISTRICT.** **BY ADVS.SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** **RESPONDENT(S)/RESPONDENT:** **----------------------** **STATE OF KERALA, BY EXCISE INSPECTOR VATAKARA EXCISE RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31.** **R BY PUBLIC PROSECUTOR SRI.R.GITHESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, ALONG WITH CRA. 1273/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **scl.** ## **B. SUDHEENDRA KUMAR, J.** **-------------------------------------** Crl.A.Nos.1124 & 1273 of 2011 -------------------------------------Dated this the 9th day of March, 2016 ## **JUDGMENT** The accused in S.C.No.409 of 2008 on the files of the Additional Sessions Court (Adhoc-II), Kozhikode, filed these appeals challenging the conviction and sentence passed by the court below under Section 55 (a) of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 22.02.2005 at about 2.45 p.m., the appellants were found transporting 7.5 litres of Indian Made Foreign Liquor from Mahe in a bus bearing registration No.KL-18-A-6937, in contravention of the provisions of the Abkari Act. 4. The offence was detected by PW1, who was the preventive officer during the relevant period. The appellants were arrested from the spot and the contraband articles were seized as per Ext.P3 Mahazar. Thereafter, PW5 registered the crime and conducted the initial investigation. Thereafter, the Crl.A.Nos.1124 & 1273 of 2011 -2- investigation was taken over by PW4. After completing the investigation, PW4 filed the final report before the court. 5. Before the court below, PW1 to PW5 were examined and Exts.P1 to P9 were marked for the prosecution. No evidence was adduced on the side of the appellants. 6. The learned counsel for the appellants argued that since there is no evidence to prove that the appellants were in possession of the liquor in the course of illegal import, the offence under section 55 (a) of the Abkari Act is not attracted and consequently, the conviction and sentence passed by the court below cannot be sustained. In this case, the appellants were found in possession of 10 bottles each of Indian Made Foreign Liquor. Each bottle was having a capacity of 375 ml each. The bottles did not contain the seal of the Beverages Corporation of Kerala. However, the bottles contained the label “for sale in Pondichery only”. The Court in K.V.Venu v. State [2013 (1) KLJ 7] held that there cannot be a presumption that Crl.A.Nos.1124 & 1273 of 2011 -3- all liquor bottles without seal of the State Beverages Corporation are imported from Mahe or other states. The Court in Tippu Mohammed v. State of Kerala and another [2015(1) KLD 59] held that in the absence of any evidence to find that the liquor processed by the accused was imported in violation of the provisions of the Act, the mere production of bottles with labels cannot discharge the prosecution of its burden of proving that the contraband articles were imported into the State of Kerala in violation of the provisions of the Abkari Act. 7. PW1 and PW2 stated that the appellants were found carrying the liquor in a bus bearing registration No.KL-18-A6937. However, no ticket was produced before the court to prove that the appellants travelled in the said bus, carrying the contraband. No bill relating to the purchase of the contraband articles from outside the State was also seized from the appellants. PW1 did not state that the articles seized in this Crl.A.Nos.1124 & 1273 of 2011 -4- case were imported by the appellants from Mahe to the State of Kerala. PW4 and PW5, who had conducted the investigation in this case, also did not conduct any investigation in this regard. Therefore, there is absolutely no evidence before the court to prove that the contraband articles involved in this case were imported by the appellants to the State of Kerala. For the said reason, merely because the bottles contained the label 'for sale in Pondichery only', it cannot be said, in the absence of any evidence, that the said bottles were imported into the State of Kerala by the appellants. So also, merely because the bottles did not contain the seal of the State Beverages Corporation, it cannot be said, in the absence of any evidence, that the said bottles were imported into the state by the appellants. In Mohanan v. State of Kerala [2007 (1) KLT 845], the Division Bench of this Court held that Section 55(a) of the Abkari Act is applicable only when persons illegally import or transport liquor or in possession of liquor while illegally Crl.A.Nos.1124 & 1273 of 2011 -5- importing. In this case, there is absolutely no evidence before the court to prove that the appellants were found in possession of the liquor while illegally importing the same. Therefore, the appellants cannot be convicted under Section 55 (a) of the Abkari Act. In the said circumstances, the conviction and sentence passed by the court below under Section 55 (a) of the Abkari Act stand set aside and the appellants are acquitted for the said offence. The appellants were found in possession of a total quantity of 7.5 litres of Indian Made Foreign Liquor. The permissible quantity of Indian Made Foreign Liquor, which a person could possess during the relevant period was 3 litres as per SRO No. 725/2003. Therefore, the appellants were, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under rules. Therefore, the appellants are liable to be convicted under Section 63 of the Abkari Act. Accordingly, the appellants stand convicted under Section 63 of the Abkari Crl.A.Nos.1124 & 1273 of 2011 -6- Act. 8. The learned counsel for the appellants pleaded for leniency in the matter of sentence. There is no previous conviction against the appellants. The appellants were in judicial custody in connection with this case from 22.02.2005 to 11.03.2005 as under-trial prisoners. Considering the facts and circumstances of the case, including the quantity of the contraband seized from the appellants, I am of the view that the appellants can be sentenced to imprisonment to the period of detention already undergone by the appellants in connection with this case and a fine of Rs.5,000/- (Rupees five thousand only) each and in default to simple imprisonment for one month each under Section 63 of the Abkari Act, to meet the ends of justice and accordingly I order so. In the result, these appeals stand allowed in part as above. The appellants shall surrender before the court below on Crl.A.Nos.1124 & 1273 of 2011 -7- ## 25.05.2016 to suffer the sentence. If the appellants had deposited any amount before the court below pursuant to the direction of this Court, the said amount will be treated as part payment/payment of the fine directed in this judgment. **Sd/B. SUDHEENDRA KUMAR JUDGE** Scl/09.03.2016 True Copy PA to Judge