High Court of KeralaSingle Judge2020-11-06Appeal partly allowed; conviction under 55(a) s...

JAYASENAN v. CIRCLE INSPECTOR EXCISE SPECIAL SQUAD, MALAPPURAM & STATE OF KERALA

Case / Petition Number:CRL.A.No.2431 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-11-06
Court Decision / Holding: Appeal partly allowed. The conviction under Section 55(a) Abkari Act is set aside for lack of evidence of illegal import/possession in the course of import. The appellant is convicted under Section 63 Abkari Act for possession of an excess quantity of liquor (1.750 litres vs. permissible 1.5 litres). Detention already undergone is credited; sentence: fine of Rs. 2,000 and in default simple imprisonment for 15 days. The appellant to surrender before the trial court on 10.12.2020.
Final Disposition: Appeal partly allowed; conviction under 55(a) set aside; conviction under 63 upheld with sentence as stated.

Parties to the Case

Appellants / Petitioners

JAYASENAN, S/O. NARAYANAN, PADINJAREPURAKKAL, PARIYAPURAM AMSOM,, ERANAKARANALLUR DESOM, TIRUR TALUK

Respondents

1 THE CIRCLE INSPECTOR EXCISE SPECIAL SQUAD, MALAPPURAM
2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• K. Shibili Naha

Counsels for Respondents

• Smt. V. Sreeja, PP

Case Synopsis & Summary

Jayasenan, the appellant, challenges a conviction under Section 55(a) Abkari Act by the Additional Sessions Court, Manjeri, for possessing 1.750 litres of Indian Made Foreign Liquor for sale. The prosecution alleged contravention of the Abkari Act. The appeal was finally heard on 06 November 2020 in CRL.A. No. 2431 of 2007, with the Circle Inspector of Excise Special Squad, Malappuram, and the State of Kerala as respondents. The learned counsel for the appellant argued that there is no evidence showing the liquor was imported into the state or that the appellant was found in possession in the course of illegal import, export, transit or transport, a prerequisite for applying Section 55(a). The court recalls Mohanan v. State (2007) 1 KLT 845, and Tippu Mohammed v. State of Kerala (2015) 1 KLD 59, noting that mere possession of bottles with foreign labels, or lacking seals, cannot by themselves prove illegal import. It also cites Venu K.V. v. State (2013) KLJ 7 for the principle that absence of a Kerala seal does not establish import from non-local sources. In these circumstances, the conviction under Section 55(a) cannot be sustained and is set aside. Instead, the appellant is convicted under Section 63 for possession of an excess quantity of liquor, with a sentence including a fine and a short period of imprisonment, credit for detention already undergone. The appeal is allowed in part; the appellant is to surrender on 10 December 2020.

Provisions of Law Cited

Section 55(a) of the Abkari ActSection 63 of the Abkari ActS.R.O. No.127/1999 dated 5.2.1999

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that there is no evidence showing the liquor was imported into Kerala or that he was found in possession in the course of illegal import, export, transit or transport; merely labeling or absence of state seals cannot prove import or illegal possession under Section 55(a); the prosecution burden cannot be discharged on the basis of labels alone.

Contentions of Respondents

The respondents relied on the statutory framework of the Abkari Act to argue for conviction under Section 55(a) for possession of contraband liquor; the State contends that the quantity and manner of possession indicate violation of the Act, with consideration given to relevant authorities and evidence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohanan v. State	2007(1) KLT 845	Positive	Used to support the proposition that Section 55(a) applies only when illegal import/transport or possession during illegal import is established; current case lacks such evidence, justifying acquittal under 55(a).
Tippu Mohammed v. State of Kerala	2015(1) KLD 59	Positive	Held that mere production of bottles with non-local labels cannot discharge the burden of proving import; supports the absence of proof of import in the present case.
Venu K.V. v. State	2013(1) KLJ 7	Positive	Held that there cannot be a presumption that liquor bottles without the seal are imported; used to caution against inferring import from labeling alone.

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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** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **CRL.A.No.2431 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 294/2006 DATED 13-11-2007 OF ADDITIONAL SESSIONS COURT (ADHOC-1), MANJERI** **AGAINST THE ORDER/JUDGMENT IN CP 104/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI** ## **APPELLANT/S:** **JAYASENAN, S/O. NARAYANAN, PADINJAREPURAKKAL, PARIYAPURAM AMSOM,, ERANAKARANALLUR DESOM, TIRUR TALUK.** **BY ADV. SRI.K.SHIBILI NAHA** ## **RESPONDENT/S:** **1 THE CIRCLE INSPECTOR EXCISE SPECIAL SQUAD, MALAPPURAM. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SMT.V.SREEJA,PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.Appeal No.2431 of 2007** -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Section 55(a)of the Abkari Act.** **2. The prosecution allegation is that on 15.02.2003 at about 6.00 p.m., the appellant was found in possession of 1.750 litres of Indian Made Foreign Liquor for the purpose of sale, in contravention of the provisions of the Abkari Act.** **3. Heard.** **4. The learned counsel for the appellant has argued that since there is no evidence to show that the appellant was found in possession of the contraband in the** ## **Crl.Appeal No.2431 of 2007** -3- **course of illegal import, export, transit or transport, the court below ought not to have convicted the appellant under Section 55(a) of the Abkari Act.** **5. In Mohanan v. State [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 importing. In this case, no evidence was adduced by the prosecution to show that the bottles possessed by the appellant were imported into the State of Kerala. It is true that the bottles contained the label 'for sale** ## **Crl.Appeal No.2431 of 2007** -4- **in Pondicherry only'. The Court 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. In the said circumstances, merely because the bottles contained the label 'for sale in Pondicherry only' it cannot be said, in the absence of any evidence, that the appellant had imported the contraband in violation of the** ## **Crl.Appeal No.2431 of 2007** -5- ## **Act.** **6. It appears that the bottles did not contain the sticker of the Kerala State Beverages Corporation. The 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 Kerala State Beverages Corporation are imported from Mahe or other States. In this case, there is absolutely no evidence to show that the appellant had imported the contraband or that the appellant was found in possession of the contraband in the course of illegal import, export, transit or** ## **Crl.Appeal No.2431 of 2007** -6- **transport. 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 not contain the sticker of the Kerala State Beverages Corporation, it cannot be said that the said bottles were imported by the appellant. That apart, there is no evidence before the court to show that the appellant was in possession of the liquor in the course of illegal import, export, transit or transport. In the said circumstances, the conviction and sentence passed by the court below under Section 55(a)of the Abkari Act cannot be sustained and consequently, I** ## **Crl.Appeal No.2431 of 2007** -7- ## **set aside the same.** **7. The appellant was found in possession of 1.750 litres of Indian Made Foreign Liquor at the relevant time. The permissible quantity of Indian Made Foreign** **Liquor which a person could possess as on the date of incident was 1.5 litres as per** **S.R.O.No.127/1999 dated 5.2.1999.** **Therefore, there can be no doubt that the appellant was found in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. In the said circumstances, the appellant is liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the appellant** ## **Crl.Appeal No.2431 of 2007** -8- ## **under Section 63 of the Abkari Act.** **8. The appellant was in detention in connection with this case from 15.02.2003 to** **1.3.2003. The appellant is presently aged 62 years. Considering the facts and circumstances of the case, including the quantity of the 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 by the appellant in connection with this case and a fine of Rs.2,000/- (Rupees two thousand only) and in default to simple imprisonment for 15 days under Section 63 of the Abkari Act, to meet the ends of justice. It is** **Crl.Appeal No.2431 of 2007** -9- **ordered accordingly.** **In the result, this appeal stands allowed in part as above. The appellant will** **surrender before the court below on 10.12.2020 to suffer the sentence.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK