Mahabala Rai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937 CRL.A.No. 88 of 2012 (A) ------------------------SC 251/2003 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), KASARAGOD ## APPELLANT/ACCUSED: -------------------------------- MAHABALA RAI S/O.MUTHAPPA RAI, BAJAKUDLU, ENMAKAJE VILLAGE KASARAGOD TALUK & DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH ## RESPONDENT(S)/RESPONDENT: ---------------------------------------------- STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR BADIADKA EXCISE RANGE, KASARAGOD DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.88 of 2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March 2016 ## JUDGMENT The accused in S.C.No.251 of 2003 on the files of the Additional Sessions Court (Adhoc-III), 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 14.3.2001 at 6.30 p.m., the appellant was found in possession of 10 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 ml, in contravention of the provisions of the Abkari Act. Crl.A.88/2012 : 2 : 4. The offence was detected by PW1, who was the Excise Inspector during the relevant period. He arrested the appellant from the spot and seized the contraband as per Ext.P1 Mahazar. Thereafter, he registered the crime. The investigation was conducted by late A.Krishnan, Excise Inspector. After completing the investigation, PW1 filed the final report before the court. 5. Before the court below, PW1 to PW4 were examined and Exts.P1 to P5 were marked for the prosecution, besides identifying MO1 to MO2 series. DW1 to DW6 were examined and Exts.D1 to D6 were marked for the appellant. 6. The learned counsel for the appellant has argued that since there is no evidence before the court to show Crl.A.88/2012 : 3 : that the appellant was in possession of the contraband in the course of illegal import, the offence under Section 55 (a) of the Abkari Act is not attracted and consequently, the conviction and sentence passed by the court below cannot be sustained. There is absolutely no allegation or evidence in this case that the appellant was in possession of the contraband for the purpose of sale. Ten bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 ml each, had been seized from the appellant. The said bottles contained the label 'For sale in Karnataka'. The said bottles also did not contain the seal of the Kerala State Bevereges Corporation. 7. This Court in Venu K.V. v. State [2013(1) KLJ 7] held that there cannot be a presumption that all liquor Crl.A.88/2012 : 4 : bottles without seal of the State Beverages Corporation are imported from Mahe or other States. In Tippu Mohammed v. State of Kerala [2015(1) KLD 59], the court 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 label cannot discharge the prosecution of its burden of proving that the contraband articles were imported into the State by the accused. PW1 did not state that the contraband involved in this case had been imported into the State by the appellant. There is absolutely no evidence before the court to prove that the contraband involved in this case was imported into the State by the appellant. No investigation was also conducted in this Crl.A.88/2012 : 5 : regard. In the said circumstances, merely because the bottles did not contain the seal of the Kerala State Bevereges Corporation, it cannot be said that the appellant imported the liquor into the State of Kerala. So also, merely because the bottles contained the label 'For sale in Karnataka', it cannot be said, in the absence of any evidence, that the appellant imported the liquor into the State of Kerala. 8. 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. Since there is absolutely no evidence in this case to prove that the appellant was in possession of the ## Crl.A.88/2012 : 6 : contraband in the course of illegal import, the appellant cannot be convicted under Section 55(a) of the Abkari Act and 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 set aside the same and acquit the appellant for the said offence. The appellant was found in possession of a total quantity of 3.75 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 SRO.127/99 dated 5.2.1999. Therefore, the appellant was, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Therefore, the appellant is liable to be convicted Crl.A.88/2012 : 7 : under Section 63 of the Abkari Act. Accordingly, the appellant is convicted under section 63 of the Abkari Act. 9. The learned counsel for the appellant has pleaded for leniency in the matter of sentence. The appellant was in custody for 42 days as an under-trial prisoner. The appellant was in custody from 18.1.2012 to 24.1.2012 after his conviction by the court below. There is no previous conviction against the appellant. Considering the facts and circumstances of the case, including the quantity of Indian Made Foreign Liquor possessed by the appellant, 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.3,000/(Rupees three thousand only) and in default to simple Crl.A.88/2012 : 8 : imprisonment for one month under Section 63 of the Abkari Act, to secure the ends of justice. 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. I make it clear that if the appellant had deposited any amount before the court below as directed by this court, the said amount will be treated as part payment/payment, as the case may be, of fine directed in this judgment. ## **Sd/-** ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/10.3.2016_ _// True Copy //_ _PA to Judge_