BALAN, S/O KUNHAMAN v. EXCISE INSPECTOR, VADAKARA RANGE & STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938 Crl.Rev.Pet.No. 307 of 2011 ( ) -------------------------------CRL.A 267/2008 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA SC 598/2006 of SESSIONS COURT, VADAKARA ## REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- BALAN,S/O.KUNHAMAN, KALATHUMTHAZHE KUNIYIL HOUSE, ONCHIYAM AMSOM, OORALUNKAL DESOM,VADAKARA TALUK BY ADV. SRI.T.G.RAJENDRAN ## RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------- ## 1. EXCISE INSPECTOR VADAKARA RANGE-673101 ## 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR, SHRI.C.K.PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## Crl.R.P. No.307 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of September 2016 ## O R D E R The revision petitioner was convicted and sentenced under Section 55(a) of the Abkari Act by the trial court. In the appeal, the conviction and sentence had been altered to Section 58 of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 23.6.2004 at about 10.40 a.m., the revision petitioner was found transporting 10 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 m.l. Each, in a bus Crl.R.P.307/2011 : 2 : bearing Reg.No.KL-10-C-1620, in contravention of the provisions of the Abkari Act. 4. Before the trial court, PW1 to PW7 were examined and Exts.P1 to P10 were marked for the prosecution. No evidence was adduced from the side of the revision petitioner. 5. The learned counsel for the revision petitioner has argued that since there is no evidence to prove that the revision petitioner was found in possession of the liquor in the course of import, export, transit or transport, the trial court ought not have convicted the revision petitioner under Section 55(a) of the Abkari Act. It has been further argued by the learned counsel for the revision petitioner that since there is no evidence to show that the revision Crl.R.P.307/2011 : 3 : petitioner was in possession of the contraband with the knowledge that the same was illegally imported or manufactured or that duty etc. had not been paid, the conviction by the appellate court under Section 58 of the Abkari Act, cannot also be sustained. 6. Per contra, the learned Public Prosecutor has argued that since the bottles contained the label 'For sale in Pondicherry' only, it can be inferred that the revision petitioner was found in possession of the contraband with the knowledge that it was illegally imported, particularly when the bottles did not contain the sticker of Kerala State Bevereges Corporation and in the said circumstances, the conviction and sentence passed by the appellate court was perfectly justified. Crl.R.P.307/2011 : 4 : 7. In this case, the bottles contained the label 'For sale in Pondicherry'. The said bottles were also not having the label of Kerala State Bevereges Corporation. The court in in Tippu Mohammed v. State of Kerala [2015(1) KLD 59], held that in the absence of any evidence to find that the liquor allegedly possessed by the 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 that the accused imported the contraband in violation of the Act. The Court in Venu K.V. v. State [2013(1) KLJ 7] held that there cannot be a presumption that all liquor bottles without seal of the State Beverages Corporation are imported from Mahe or other States. Crl.R.P.307/2011 : 5 : 8. In this case, PW1 and PW2 were the officers, who detected the offence. They did not specifically state that the revision petitioner had imported the contraband from outside the state. PW1 and PW2 also did not conduct any investigation in this regard. PW6 was the Investigating Officer in this case. PW6 also did not conduct any investigation in this regard. The conductor or the driver of the bus in which the revision petitioner had allegedly transported the contraband was also not examined by the prosecution to prove the importing of the contraband into the State of Kerala. The evidence of PW6 would show that the trip sheet of the bus was also not seized. The prosecution did not have a contention that the revision petitioner travelled in the bus with the contraband without Crl.R.P.307/2011 : 6 : any ticket. However, no bus ticket of the revision petitioner was also seized and produced before the court by the prosecution. Since there is no evidence to prove that the contraband articles involved in this case had been imported from outside the State, the mere fact that there was label 'for sale in Pondicherry' on the bottles cannot give rise to any presumption that the said bottles were imported into the State by the revision petitioner. So also, since there is no evidence to show that the liquor bottles involved in this case were imported into the State of Kerala, merely because the said bottles did contain the sticker of the State Beverages Corporation, it cannot be said that the said liquor bottles were imported by the revision petitioner. 9. In Mohanan v. State [2007(1) KLT 845], the ## Crl.R.P.307/2011 : 7 : 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 importing. In this case, since there is no evidence before the court that the revision petitioner was in possession of the liquor in the course of illegal import, the revision petitioner cannot be convicted under Section 55(a) of the Abkari Act. The Division Bench in Surendran v. Excise Inspector [2004(1) KLT 404] held that the possession must be with the knowledge of the goods having been illegally imported or manufactured, for the case to fall within the ambit of Section 58 of the Abkari Act. In this case, there is no evidence before the court that the revision petitioner was having the knowledge that the liquor was illegally ## Crl.R.P.307/2011 : 8 : imported, transported or manufactured or knowing that the duty etc. had not been paid. Therefore, the ingredients of Section 58 are not satisfied in this case and consequently, the conviction and sentence passed by the appellate court under Section 58 of the Abkari Act cannot be sustained and consequently, I set aside the same. 11. The revision petitioner was found in possession of a total quantity of 3.75 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 S.R.O. No.725/2003 dated 2.8.2003. Therefore, the revision petitioner was, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Therefore, Crl.R.P.307/2011 : 9 : the revision petitioner is liable to be convicted under Section 63 of the Abkari Act. The revision petitioner was in custody from 23.6.2004 to 25.8.2004 in connection with this case. The revision petitioner was aged 60 years during the relevant period. He is presently aged 70 years. Considering the facts and circumstances of the case, I am of the view that sentence of imprisonment to the period of detention already undergone by him in connection with this case 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, will be sufficient to secure the ends of justice. Accordingly, I order so. In the result, this revision petition stands allowed in part as above. Crl.R.P.307/2011 **==> picture [30 x 11] intentionally omitted <==** Needless to state that if the revision petitioner had already deposited the amount before the trial court as directed by this court as per order dated 28-1-2011, the revision petitioner need not deposit any further amount to comply with the direction of deposit of fine in this order. ## **Sd/-** ## **B.SUDHEENDRA KUMAR, JUDGE** dl/.28.9.2016 // True Copy // PA to Judge