K.G. Seetharama Rai v. State of Kerala and Excise Inspector, Badiadka Excise Range

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938 CRL.A.No. 1336 of 2004 (B) --------------------------SC 850/2000 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE APPELLANT/ACCUSED:: --------------------------------- K.G.SEETHARAMA RAI, S/O. DEVAKI, AGED 38 YEARS, KALLADUKKA GUTHU,, DELAMBADY VILLAGE. ## BY ADV. SRI.M.RAMESH CHANDER ## RESPONDENTS/COMPLAINANT:: --------------------------------------- 1. STATE OF KERALA, - REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, BADIADKA EXCISE RANGE. PUBLIC PROSECUTOR, SRI M V ANANDAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.1336 of 2004 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January 2017 ## JUDGMENT The appellant was convicted by the court below under Section 55(a) of the Abkari Act. The court below also sentenced the appellant to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for two months under Section 55(a) of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 9.7.1999 at 12.45 p.m., the appellant was found in possession of 30 bottles of Indian Made Foreign Liquor, each bottle having Crl.A.1336/2004 **==> picture [29 x 13] intentionally omitted <==** a capacity of 180 m.l. each, in contravention of the provisions of the Abkari Act. 4. Before the trial court, PW1 and PW2 were examined and Exts.P1 to P6 were marked for the prosecution, besides identifying MO1 series. No evidence was adduced on the side of the appellant. 5. The learned counsel for the appellant has argued that since there is no evidence to the effect that the appellant was found in possession of the contraband in the course of illegal import, the offence under Section 55(a) of the Abkari Act is not attracted. The learned counsel relied on the decision of the Division Bench in Mohanan v. State of Kerala [2007 (1) KLT 845] to buttress his argument. It has been further argued by the learned counsel for the appellant that since there is no evidence to show that the Crl.A.1336/2004 **==> picture [29 x 13] intentionally omitted <==** appellant was in possession of the contraband in the course of illegally import, the mere fact that the bottles contained the label 'for sale in Karnataka State' cannot be sufficient to prove that the appellant imported the contraband into the State of Kerala from outside. The learned counsel relied on the decision in Tippu Mohammed v. State of Kerala [2015 - (1) KLD 59] to buttress his argument. 6. In Mohanan (supra), the 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. 7. In Tippu Mohammed (supra), the court held that in the absence of any evidence to prove that the liquor possessed by the accused was imported from outside the state, the mere production of bottles with the labels cannot Crl.A.1336/2004 **==> picture [29 x 13] intentionally omitted <==** be sufficient to prove the offence under Section 55(a) of the Abkari Act. 8. In this case, there is absolutely no evidence before the court to prove that the appellant possessed liquor in the course of illegal import. There is also no evidence before the court to prove that the appellant illegally imported the contraband into the State of Kerala. PW2 was the Excise Inspector, who detected the offence. He also conducted the investigation in this case and filed the final report before the court. PW2 did not conduct any investigation in this case regarding the above aspect. In the absence any evidence to show that the liquor was imported into the State of Kerala, the mere production of bottles containing the label 'for sale in Karnataka only' cannot be sufficient to hold that the liquor bottles were imported into the State by Crl.A.1336/2004 : 5: the appellant. Since there is no evidence to prove that the appellant imported the contraband into the State or that the appellant was found in possession of the contraband in the course of illegal import, the offence under Section 55(a) of the Abkari, is not attracted. In the said circumstances, the conviction and sentence under Sections 55(a) of the Abkari Act cannot be sustained and consequently, I set aside the same. 9. The appellant was found in possession of 5.4 litres of Indian Made Foreign Liquor. The permissible quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was 1.5 litres as per S.R.O. No.127/99. Therefore, there can be no doubt that the appellant was in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law Crl.A.1336/2004 : 6: during the period in question. Therefore, the appellant is liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the appellant under Section 63 of the Abkari Act. 10. As regards the sentence, the learned counsel for the appellant has pleaded for leniency. The appellant is aged presently 53 years. No previous conviction has been proved against the appellant. The appellant was in custody in connection with this case as an under-trial prisoner from 9.7.1999 to 12.8.1999. Considering the facts and circumstances of the case, I am of the view that the appellant can be sentenced to 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 Crl.A.1336/2004 : 7: under Section 63 of the Abkari Act, to meet the ends of the justice and accordingly, I order so. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the trial court on 7.3.2017 to suffer the sentence. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/.13.1.2017_ _// True Copy //_ _PA to Judge_