## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942**
## **CRL.A.No.1334 OF 2005**
**SC 1085/2004 DATED 19-07-2005 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY**
## **APPELLANT/S:**
**KACHERI GIREESHAN AGED 34 YEARS S/O BALAN NAMBIAR , PATTIAM AMSOM, THALASSERY TALUK, KANNUR DISTRICT.**
**BY ADV. SRI.CIBI THOMAS**
## **RESPONDENT/S:**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.**
**R1 BY PUBLIC PROSECUTOR**
## **OTHER PRESENT:**
**SR.PP-SRI.B.JAYASURYA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON**
**26-02-2020, THE COURT ON 21-05-2020 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 21[st] day of May, 2020.**
**The appeal is filed by the first accused in Crime No.8 of 2001 of Thalassery Excise Range, who along with accused 2 to 4 stand convicted under Section 55**
**(a) of the Abkari Act by the Sessions Court, Thalassery as per the judgment in S.C.No.1085 of 2004.**
**2. The prosecution allegation based on which the charge was framed, the accused tried and convicted are as under:**
**On 17.09.2001, at about 1.30 p.m, while PW2, the Excise Inspector, Thalassery along with patrol party, was conducting vehicle checking near Ponniam Bridge, autorickshaw bearing registration No.KL-13 G 4463 driven by the appellant with accused 2 to 4 as passengers reached the spot. Even though the Excise officials demanded the appellant to stop the vehicle, the appellant sped away in an attempt to flee. The Excise party chased the autorickshaw in their jeep and finally succeeded in stopping the vehicle at Tharuvana**
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**Theru. On inspection of the vehicle, the officials found 30 bottles of Indian Made Foreign Liquor of 180 ml.capacity, concealed in two bags in the passenger section. From the label on the bottles, it became evident that the liquor was manufactured and meant for sale only in in Pondichery. After ascertaining that the bottles contained Indian Made Foreign Liquor, samples were drawn, the bottle sealed, the accused arrested and the crime registered alleging commission of offence under Section 55 (a) of the Abkari Act.**
**2. In order to prove the prosecution case, Pws 1 to 4 were examined, Exts.P1 to P9 documents and MO1 to MO5 marked in evidence. In their examination under Section 313 Cr.P.C, the accused denied the incriminating circumstances put to them, but did not choose to adduce any evidence in their defence, either oral or documentary.**
**3. On appreciation of the evidence, the trial court found the prosecution to have succeeded in proving that the accused had committed the alleged**
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**offence and proceeded to convict and sentence them to undergo simple imprisonment for two months and to pay a fine of Rs.1,00,000/- each, with default sentence of simple imprisonment for one month.**
**4. Heard Sri.Cibi Thomas, learned Counsel for the appellant and Sri.B.Jayasurya, learned Senior Government Pleader.**
**5. Assailing the findings in the impugned judgment, the learned counsel for the appellant contended that even if the prosecution case of the appellant, along with the other accused, having been found in possession of Indian Made Foreign Liquor is accepted for the sake of argument, mere possession of IMFL by itself, will not attract the offence under Section 55(a). It is contended that the quantity of liquor recovered was within the permissible limit and that even if the liquor was found to have been manufactured and meant to be sold and consumed in Pondichery, mere possession, without proving the element of import, is not attract the offence. The**
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**learned counsel submits that the prosecution had not succeeded in proving that the liquor was imported from Pondichery and a perusal of the prosecution evidence would reveal that the allegation is only that the accused were found transporting the liquor.**
**6. In opposition, the learned Public Prosecutor contended that it was clearly printed on the labels of bottles that the liquor was meant to be consumed within Pondichery and therefore seizure of large quantity of liquor within the State of Kerala and the attempt of the accused to flee is sufficient proof of the liquor having been imported in violation of Rule 9 of the Foreign Liquor Rules, thus attracting the offence under Section 55(a) of the Abkari Act.**
**7. In order to appreciate the contentions, it is necessary to have a scrutiny of the prosecution evidence. In Ext.P1 seizure mahazar, the contraband has been described in the following manner:**
**Six plastic bottles of 180 ml. with the label**
**“Delight Grape Brandy Blended and Bottled in Excise**
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**Bonded Warehouse by Premier Distilleries Private Limited, Pondichery xxxxxx For Sale in Pondichery State Only” and another 24 bottles of 180 ml. each with the label “Matdoor XXX Rum xxxxx Blended and Bottled in Excise Bonded Warehouse by Ravikumar Distilleries Limited, Pondichery and Distilled, Margao Goa India.**
**8. PW2, the Detecting Officer has merely stated that six bottles of Brandy and 24 bottles of Rum, each of 180 ml.capacity was seized from the autorickshaw and that after ensuring that the bottles contained Indian Made Foreign Liquor, the accused were arrested. Noting was stated in his deposition about the accused having been accosted during the course of import from outside the State.**
**9. The short question that arises for consideration is whether the evidence discussed above was sufficient to find the appellant guilty of the offence. Section 55 (a) prescribes the penalty for import, export, transport, transit or possession of**
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**liquor or any intoxicating drug in contravention of the Act or any rule or order made under the Act. The meaning of the term 'import' as defined under Section 3(16) is, to bring into the State. Rule 9 of the Foreign Liquor Rules prohibits import of foreign liquor into the State except under the permit issued by the officer in charge of the Division to which the liquor is to be imported. It was not stated either in the scene mahazar or in the evidence of PW2 that the accused were importing liquor from Pondichery.**
**10. In the absence of evidence regarding import of IMFL, ancillary question is whether mere possession of liquor manufactured outside the State would amount to proof of import. This question was considered and answered in** _**Narayan Nair v. State of Kerala [2011 (3) KLT 722]**_ **, wherein, the learned Single Judge, after detailed consideration of all the relevant provisions held that, in order to prove the offence under Section 55(a) r/w Rule 9, the prosecution must prove that accused was in possession of IMFL and that the accused**
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**had 'brought' IMFL into the State of Kerala from some place which lies outside the State. It was further held that the act of 'bringing' is different from being in 'possession'. That, a person found to be in possession may not be the one who has brought it into the State and therefore, only for the reason that a person is found to be in possession of a contraband article, it cannot be concluded that he himself had brought the article into the State. Based on the said findings, it was held that a person shall not be convicted for the offence under Section 55 (a) r/w Rule 9 of the Rules, solely for the reason that he was found in possession of IMFL. In** _**Tippu Mohammed v. State of Kerala and another [2015 (1) KLJ 57],**_ **it was held that in the absence of any evidence to find that the liquor allegedly possessed by the appellant was imported in violation of the provisions of the Act, merely for the reason that there is a writing in the mahazar or that the labels on the bottles contained a description 'for sale in Karnataka', it cannot be**
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**stated that the prosecution has discharged its burden of proving the guilt.**
**11. I am in respectful agreement with the findings in** _**Narayan Nair and Tippu Mohammed**_ **. In the instant case also the seizure was within Kerala and the prosecution had not even attempted to prove the element of import of IMFL by the appellant and others. As such, merely for the reason that the label on the seized bottles declared the liquor to have been manufactured in another State, that by itself was not sufficient to implicate and convict the appellant for the offence under Section 55(a).**
**In such circumstances, I find it impossible to sustain the conviction imposed by the trial court. Consequently the appeal is allowed, the impugned judgment set aside and the appellant acquitted. The bail bond executed by the appellant is cancelled.**
**sd/V.G.ARUN JUDGE**
Scl/21.05
