High Court of KeralaSingle Judge2020-09-16Revision petition partly allowed: 55(a) convict...

NAGARAJ v. STATE OF KERALA

Case / Petition Number:Crl.Rev.Pet.No.1419 OF 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-09-16
Court Decision / Holding: Revision petition allowed in part: set aside the conviction under Section 55(a) of the Abkari Act for lack of evidence of illegal import; uphold conviction under Section 63 for possession of excess quantity of IMFL (6.75 L); sentence: imprisonment for the period already undergone plus a fine of Rs. 3,000, with default simple imprisonment for 15 days; order for reimbursement of any excess deposit made, if applicable.
Final Disposition: Revision petition partly allowed: 55(a) conviction set aside; 63 conviction maintained and sentence/fine as specified; reimbursement of excess deposit as applicable; direction to consider detention already undergone in sentencing.

Parties to the Case

Appellants / Petitioners

Nagara j

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
Smt. Sreeja V., Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Jackson Johny

Counsels for Respondents

• Public Prosecutor (Smt. Sreeja V.)

Case Synopsis & Summary

This Kerala High Court criminal revision pertains to Nagaraj, who was convicted under Section 55(a) of the Abkari Act for possession of Indian Made Foreign Liquor (IMFL) in 2003, including 18 bottles labeled 'For sale in Karnataka only'. The revision challenges the legality of the Section 55(a) conviction on the ground that there is no evidence of import, export, transit or possession during import, a prerequisite for such a charge. The prosecution relied on the label to infer illegal import, but the court highlights a lack of investigation into whether the liquor was imported into Kerala; PW1, PW3, and PW4 did not establish importation. The court cites precedents—Tippu Mohammed v. State of Kerala; Venu K.V. v. State; Mohanan v. State—clarifying that mere labeling cannot prove import and that absence of Kerala State Beverages Corporation (KSBC) seal cannot alone prove external origin. Nevertheless, the petitioner possessed 6.75 litres, exceeding the 1.5 litres allowed under S.R.O. No.127/99, attracting Section 63 of the Abkari Act. The court, while setting aside the Section 55(a) conviction for lack of evidence of import, nonetheless convicts under Section 63 and imposes a fine with a short period of imprisonment in default, taking detention already undergone into account. The order also contemplates reimbursement of any excess deposited amount.

Provisions of Law Cited

Abkari Act, Section 55(a)Abkari Act, Section 63S.R.O. No.127/99 dated 5.2.99

Legal Doctrines & Maxims

Burden of proof lies on the prosecution to prove import/illegal possession in the course of import; labeling alone cannot discharge that burden.
There can be no presumption that liquor bottles without the KSBC seal are imported from Mahe or other States.
Section 55(a) of the Abkari Act applies only where there is evidence of illegal import or transport or possession while importing.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that there is no evidence showing the revision petitioner was found in possession of liquor in the course of import; absence of evidence of import/transport means Section 55(a) cannot be invoked. The production of bottles with a 'For sale in Karnataka' label and absence of KSBC labeling cannot discharge the prosecution’s burden to prove illegal import. Investigations by PW1, PW3, and PW4 did not address whether the liquor was imported. Citing Tippu Mohammed, Venu K.V., and Mohanan, they contend labeling alone is not proof of import, and thus the conviction under Section 55(a) cannot stand. Given the quantity (6.75 L) and the SR0’s permissible limits, the remedy lies in applying Section 63, with proportionate sentencing, or acquittal on the 55(a) charge.

Contentions of Respondents

The respondents contended that the presence of bottles labeled 'For sale in Karnataka' and the absence of KSBC labeling strongly suggest external origin and possible illegal import, creating a presumption in favor of import violation. They argued the prosecution carried its burden by showing contraband liquor and lack of KSBC branding; the label’s implication, coupled with the quantity, supports proceedings under the Abkari Act. They urged upholding the conviction under Section 55(a) and sustaining the related penalties, interpreting the precedents as not negating the prosecution’s inferences in this factual matrix.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Tippu Mohammed v. State of Kerala	2015(1) KLD 59	Positive	Held that mere production of bottles with labels cannot discharge the prosecution's burden to prove illegal import; absence of evidence of import undermines conviction under Section 55(a).
Venu K.V. v. State	2013(1) KLJ 7	Positive	Held that there cannot be a presumption that all liquor bottles without KSBC seal were imported from Mahe or other States; cautions against relying solely on labeling to prove import.
Mohanan v. State	2007(1) KLT 845	Positive	Stated that Section 55(a) is applicable only when there is proof of illegal import/possession during import; absence of such proof negates the charge under 55(a).

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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** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **Crl.Rev.Pet.No.1419 OF 2012** **AGAINST THE ORDER/JUDGMENT IN CRA 242/2010 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN SC 293/2007 OF SUB COURT, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **NAGARAJ AGED 28 YEARS, S/O SADASHIVA, R/AT. BAKRAVAYAL, VORKADY VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT.** ## **BY ADV. SRI.JACKSON JOHNY** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.SREEJA V., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-2-** **Crl.Rev.Pet.No.1419 OF 2012** ## **O R D E R** The revision petitioner was convicted and sentenced by the courts below under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 18.02.2003 at about 5.30 p.m., the revision petitioner was found in possession of 18 bottles of Indian Made Foreign Liquor having the label “for sale in Karnataka only”, each bottle having a capacity of 375ml each, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the revision petitioner has argued that since there is no evidence to prove that the revision petitioner was found in possession of the liquor in the course of import, export, transit or transport, the courts below ought not to have convicted the revision **-3-** **Crl.Rev.Pet.No.1419 OF 2012** petitioner under Section 55(a) of the Abkari Act. _5_ . _Per contra,_ the learned Public Prosecutor has argued that since the bottles contained the label 'For sale in Karnataka' only, it can be inferred that the revision petitioner was found in possession of the contraband in the course of illegal import, particularly when the bottles did not contain the sticker of Kerala State Beverages Corporation and in the said circumstances, the conviction and sentence passed by the courts below were perfectly justified. 6. In this case, the bottles contained the label 'For sale in Karnataka only'. The said bottles were also not having the label of Kerala State Beverages Corporation. 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 **-4-** **Crl.Rev.Pet.No.1419 OF 2012** 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. 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. 8. In this case, PW1 detected the offence. He stated that the contraband seized was Indian Made Foreign Liquor. Even though he stated that the bottles contained the label “for sale in Karnataka only”, he did not conduct any investigation as to whether the revision petitioner was found in possession of the bottles in the course of illegal import or not. PW3 and PW4 were the investigating officers, who also did not conduct any investigation in this regard. Since there is no evidence to prove that the contraband articles involved in this case **-5-** **Crl.Rev.Pet.No.1419 OF 2012** had been imported from outside the state, the mere fact that there was label “for sale in Karnataka only” on the bottles cannot give raise to any presumption that the said bottles were imported into the State by the revision petitioner. 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 liquor bottles involved in this case were imported by the revision petitioner. 9. 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 evidence before the court to prove that the revision petitioner was in **-6-** **Crl.Rev.Pet.No.1419 OF 2012** possession of the liquor in the course of illegal import, the revision petitioner 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. 10. The revision petitioner was found in possession of 6.75 litres of Indian Made Foreign Liquor at the relevant time. 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 dated 5.2.99. Therefore, the revision petitioner was, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Therefore, the revision petitioner is liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the revision petitioner under Section 63 of the Abkari Act. 11. It appears that the revision petitioner was in **-7-** **Crl.Rev.Pet.No.1419 OF 2012** custody from 18.02.2003 to 18.03.2003 in connection with the incident in this case. Considering the facts and circumstances of the case, including the period of detention undergone by the revision petitioner in connection with this case and also taking into consideration of the quantity of the contraband seized, I am of the view that the revision petitioner 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 imprisonment for fifteen days under Section 63 of the Abkari Act, to meet the ends of justice. It is ordered accordingly. In the result, this revision petition stands allowed in part as above. Needless to state that if the revision petitioner had already deposited the amount before the trial court as **-8-** **Crl.Rev.Pet.No.1419 OF 2012** directed by this court as per order dated 25.06.2012, the revision petitioner need not deposit any further amount to comply with the direction of payment of fine in this order. I make it clear that the revision petitioner is entitled to reimbursement of the excess amount, if any, deposited by the revision petitioner, from the court concerned. **Sd/-** **B.SUDHEENDRA KUMAR JUDGE** **Nkr/16.09.2020**