B.K. Narayanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937 CRL.A.No. 950 of 2011 ( ) -------------------------(SC 392/2008 of ADDL.DISTRICT COURT & SESSIONS COURT (ADHOC-1), KASARAGOD ) APPELLANT(S)/ACCUSED: ----------------------------------- B.K.NARAYANAN,S/O.UMBUNGAN,AGED 48 YEARS RESIDING AT BALANKAI HOUSE, KOTHARAMBATH, UDUMA KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU ## RESPONDENT(S)/STATE & COMPLAINANT: ----------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER,BEKAL POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.950 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of February 2016 ## JUDGMENT The accused in S.C. No.392 of 2008 on the files of the Additional Sessions Court (Adhoc -1), Kasaragod filed this appeal 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 30.9.2007 at about 11.30 a.m., the appellant was found in possession of 7.8 litres of Indian Made Foreign Liquor in contravention of the provisions of the Abkari Act. Crl.A.950/2011 : 2 : 4. PW1 was the Sub Inspector of Police, who detected the offence. He arrested the appellant. He also seized the contraband as per Ext.P2 seizure mahazar. He had taken the appellant and the contraband articles to the police station and registered the crime. PW7 was the Additional Sub Inspector of Police, who conducted the investigation. After completing the investigation, he laid the charge before the court. 5. Before the court below, PW1 to PW7 were examined and Exts.P1 to P8 were marked for the prosecution, besides identifying MO1. No evidence was adduced on the side of the defence. 6. PW1 was the Sub Inspector of Bekkal Police Station during the relevant period. On 30.9.2007 at 11.30 Crl.A.950/2011 : 3 : a.m., the appellant was found carrying a plastic bag. On getting suspicion, the appellant was intercepted and the content inside the bag was inspected. Then, it was found that the bag contained ten bottles, each bottle having a capacity of 180 ml. each and four bottles, each bottle having a capacity of 1.5 litre each, contains a liquid. PW1 tested the content inside the bottle by smelling and tasting the same. Then PW1 and others were convinced that the content inside the bottle was Indian Made Foreign Liquor. PW1 arrested the appellant from the spot. He seized the contraband as per Ext.P2 seizure mahazar. Thereafter, he registered the crime. 7. PW4 was the Police Constable, who accompanied PW1 for the patrol duty. He also had given evidence Crl.A.950/2011 : 4 : corroborating with the evidence of PW1 in all material aspects. Ext.P8 Chemical Analysis Report would show that the samples contained above 42% of ethyl alcohol. The contraband articles were produced before the court without any delay. 8. The learned counsel for the appellant has argued that even on assuming that the appellant was found in possession of the contraband alleged by the prosecution, no offence under Section 55(a) of the Abkari Act would be attracted, as there was no allegation that the appellant was found in possession of the contraband in the course of illegal import. 9. PW1 stated that the contraband involved in this case was not purchased from Beverages Corporation of Crl.A.950/2011 : 5 : Kerala. However, he did not conduct any investigation in this regard. No material was also produced before the court by PW1 to prove the same. It is discernible from the evidence of PW1 that since there was no document to show that the contraband was purchased from the Beverages Corporation of Kerala, PW1 believed that it was not purchased from Beverages Corporation of Kerala. PW7 was the Investigatig Officer in this case. He did not conduct any investigation to find out as to whether the contraband involved in this case was purchased from the Beverages Corporation of Kerala. However, PW1 admitted that 'Columbia Brandy' is also sold from the outlets of the Beverages Corporation of Kerala. It is true that no sticker of the Beverages Corporation of Kerala was Crl.A.950/2011 : 6 : affixed on the bottles. This Court in Venu K.V. v. State [2013(1) KLJ 7] held that there is no presumption that all liquor bottles without the seal of the State Beverages Corporation are imported from Mahe or other State. In this case, no investigation was conducted to find out as to whether the contraband involved in this case was imported by the appellant from outside Kerala. No material is available before the Court to indicate that the contraband involved in this case was purchased from outside the State. The Division Bench of this Court in Mohanan v. State of Kerala [2007 (1) KLT 845] 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 material before the Crl.A.950/2011 : 7 : court to indicate that the contraband involved in this case was not purchased from the Beverages Corporation of Kerala. Having gone through the relevant inputs, it has to be held that there is nothing on record to indicate that the contraband involved in this case was possessed by the appellant in the course of illegal import. Therefore, the offence under Section 55(a) of the Abkari Act cannot be attracted in this case. Consequently, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act, cannot be sustained and in the said circumstances, I set aside the same. 10. The appellant was found in possession of 7.8 litres of Indian Made Foreign Liquor. The permissible quantity of Indian Made Foreign Liquor which a person Crl.A.950/2011 : 8 : could possess during the relevant period was three litres. Therefore, the appellant was found in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law during the relevant period. In the said circumstances, the appellant is liable to be convicted under Section 63 of the Abkari Act and accordingly I order so. The appellant was in custody from 30.9.2007 to 31.10.2007 in connection with this case as an undertrial prisoner. After the conviction in this case, the appellant had undergone detention from 7.6.2011 to 14.6.2011. Considering the facts and circumstances of the case, including the quantity of contraband involved in this case, I am of the view that the appellant can be sentenced to imprisonment to the period of detention already undergone Crl.A.950/2011 : 9 : by the appellant in connection with this case and a fine of Rs.3,000/- (Rupees three thousand only) and in default to simple imprisonment for twenty days under Section 63 of the Abkari Act and accordingly, I order so. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the court below on 25.5.2016 to suffer the sentence. **B.SUDHEENDRA KUMAR, JUDGE** _dl/19.2.2016_