Koyyodan Bijesh and Mannodi Jayendran v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **CRL.A.No.2423 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 355/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY AGAINST THE ORDER/JUDGMENT IN CP 24/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY** ## **APPELLANT/ACCUSED:** **1 KOYYODAN BIJESH, S/O. BALAN, AGED 26 YEARS DRIVER, PARAMBATHU VEETIL, THALASSERY,, KANNUR DIST. 2 MANNODI JAYENDRAN, AGED 45 YEARS, S/O.SANKARAN, CLEANER, KUNHIPARAMBATH HOUSE,, THIRUVANGADU AMSOM DESOM, KAVUMBAGAM, THALASSERY,, KANNUR DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH** ## **RESPONDENT/COMPLAINANT:** **STATE REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT.SREEJA.V, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-2-** **CRL.A.No.2423 OF 2007** ## **JUDGMENT** The appellants were convicted and sentenced by the court below under Section 55 (a) of the Abkari Act. 2. The prosecution allegation is that on 27.08.2003 at about 9.30 p.m., the appellants were found transporting 9.480 litres of Indian Made Foreign liquor, having the label containing the endorsement “for sale in Pondicherry only”, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellants has argued that since there is no evidence to prove that the appellants were found in possession of the liquor in the course of illegal import, export, transit or transport, the trial court ought not to have convicted the revision **-3-** ## **CRL.A.No.2423 OF 2007** petitioner under Section 55(a) of the Abkari Act. _5_ . _Per contra,_ the learned Public Prosecutor has argued that since all the bottles except one contained the label 'For sale in Pondicherry only', it can be inferred that the appellants were found in possession of the contraband with the knowledge that it was illegally imported, particularly when the bottles did not contain the sticker of the Kerala State Beverages Corporation and in the said circumstances, the conviction and sentence passed by the court below can be perfectly justified. 6. In this case, all the bottles except one bottle contained the label 'For sale in Pondicherry only'. The bottles were also not having the sticker of the Kerala State Beverages Corporation. **-4-** ## **CRL.A.No.2423 OF 2007** 7. 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 the bottles with the labels cannot discharge the prosecution of its burden to prove that the accused imported the contraband in violation of the Act. 8. 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. 9. In this case, PW1 detected the offence. PW4 and PW5 were the investigating officers. There is no evidence to show that the appellants imported the liquor bottles involved in this case. There is also no material to **-5-** ## **CRL.A.No.2423 OF 2007** indicate that the appellants were found in possession of the contraband in the course of illegal import. No investigation was also conducted in this regard by PW1, PW4 or PW5. 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 only” on the bottles cannot give raise to any presumption that the said bottles were imported into the State by the appellants. 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 not contain the sticker of the Kerala State Beverages Corporation, it cannot be said that the said liquor bottles were imported by the appellants. **-6-** ## **CRL.A.No.2423 OF 2007** 10. 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, since there is no allegation or evidence before the court to prove that the appellants were in possession of the liquor in the course of illegal import, the appellants cannot be convicted under Section 55(a) of the Abkari Act. In the said circumstances, the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act cannot be sustained and consequently, I set aside the same. 11. The appellants were found in possession of a total quantity of 9.480 litres of Indian Made Foreign **-7-** ## **CRL.A.No.2423 OF 2007** Liquor at the relevant time. 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 02.08.2003. Therefore, the appellants were, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Therefore, the appellants are liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the appellants under Section 63 of the Abkari Act. 12. It appears that the appellants were in custody from 27.08.2003 to 06.09.2003 in connection with the incident in this case. Considering the facts and circumstances of the case, including the quantity of contraband seized and also taking into consideration of the period elapsed since the incident, I am of the view **-8-** ## **CRL.A.No.2423 OF 2007** that the appellants can be sentenced to imprisonment to the period of detention already undergone by the appellants in connection with this case and a fine of Rs.5,000/- (Rupees five thousand only) each, and in default to simple imprisonment for one month each under Section 63 of the Abkari Act, to meet the ends of justice. It is ordered accordingly. In the result, this criminal appeal stands allowed in part as above. **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** Nkr/23.09.2020