P. Gopi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937** **CRL.A.No. 88 of 2015 (D) -------------------------** **SC 842/2012 of ADDL. SESSIONS COURT - I, KASARAGOD CP 36/2012 of J.M.F.C.-I, HOSDRUG** **APPELLANT(S)/ACCUSED : ----------------------P. GOPI, AGED 33 YEARS S/O. PALOTTIL RAGHAVAN, RESIDING AT ADUKATHU HOUSE PUTHUKAI VILLAGE, KANHANGAD, KASARAGOD DISTRICT. BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI RESPONDENT(S)/STATE : ---------------------** **STATE OF KERALA THROUGH THE EXCISE RANGE OFFICER HOSDURG EXCISE RANGE OFFICE, KASARAGOD DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R BY PUBLIC PROSECUTOR SRI.R.GITHESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SCL.** ## **B. SUDHEENDRA KUMAR, J.** ## **-------------------------------------** Crl.A. No.88 of 2015 -------------------------------------Dated this the 9[th] day of February, 2016 ## **JUDGMENT** The appellant is the accused in S.C.No.842 of 2012 on the files of the Additional Sessions Court-I, Kasaragod, who in this appeal challenges the conviction and sentence passed by the court below under Section 55 (a) of the Abkari Act. 2. Heard. 3. The prosecution allegation can be briefly stated as follows:- On 1.09.2010 at about 4.00 p.m., the appellant was found in possession of 95 bottles of Indian Made Foreign Liquor, each bottle contained 180 ml. each, in contravention of the provisions of the Abkari Act. PW4 detected the offence. He arrested the appellant and seized the contraband. Thereafter, the contraband and the appellant were taken to the Excise Range Office along with the contemporary records and thereafter, the crime was registered. PW5 conducted the Crl.A. No.88 of 2015 -2- investigation and filed the final report after completing the investigation. 4. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P13 were marked for the prosecution. No evidence was adduced on the side of the appellant. 5. PW4 was the Excise Inspector who detected the offence. According to him, on 1.9.2010 at about 4 p.m., while he was on patrol duty along with the excise party, he found the appellant carrying a plastic sack on his head. On getting suspicion, the appellant was intercepted and the content inside the sack was inspected. Then it was found that the sack contained 95 plastic bottles, each bottle having a capacity of 180 ml. each, containing some liquid. He opened one of the bottles and tested the content inside the bottle by smelling and tasting the same. PW4 and others were convinced that the content inside the bottles was Indian Made Foreign Liquor. He arrested the appellant from the spot. The sample was also drawn. He prepared Ext.P1 mahazar in connection with the seizure of the contraband. He also prepared the arrest memo. Crl.A. No.88 of 2015 -3- Thereafter, the appellant and the contraband articles were taken to the Excise Range Office along with the contemporary records. Thereafter, PW4 registered the crime. PW1 was a Preventive Officer in the Excise Special Squad during the relevant period. He also accompanied PW5 for the patrol duty. PW1 had also given evidence corroborating with the evidence of PW5 in all material aspects. PW2 and PW3 were the independent witnesses examined by the prosecution to prove the occurrence. However, they did not support the prosecution case. The records would show that the sample was produced before the court without any delay. Ext.P13 certificate of Chemical Analysis would show that the sample contained 36.04% by volume of ethyl alcohol. 6. I have gone through the relevant inputs and I am satisfied that the evidence of PW1 and PW4 with regard to the seizure of the contraband, sampling, sealing and labelling can be safely accepted. The arrest of the appellant has been proved by the evidence of PW1 and PW2 coupled with Ext.P2 arrest memo. Crl.A. No.88 of 2015 -4- 7. The learned counsel for the appellant has argued that the appellant was not found in possession of the contraband in the course of export or import and in the said circumstances, the offence under Section 55 (a) of the Abkari Act will not be attracted. The learned counsel for the appellant relied on the decision of the Division Bench of this Court in Mohanan v. State of Kerala [2007 (1) KLT 845] to buttress his argument. In _Mohanan (supra),_ the Division Bench 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. There is no evidence before the court that the appellant was in possession of the liquor in the course of import. 8. The learned Public Prosecutor has submitted that there was no sticker of the Beverages Corporation of Kerala on the contraband articles and hence it has to be held that the contraband involved in this case is illegal liquor. It is true that the contraband articles involved in this case did not contain the sticker of the Beverages Corporation of Kerala. However, no Crl.A. No.88 of 2015 -5- investigation was conducted to ascertain as to whether the contraband articles involved in this case were illegally imported from outside the State of Kerala. This Court in K.V.Venu v. State [(2013) 1 KLJ 7] held that there cannot be a presumption that all liquor bottles without the seal of the State Beverages Corporation are imported from Mahe or other State. The learned Public Prosecutor has fairly conceded that the liquors manufactured outside the State, are also sold through the outlets of the Kerala State Beverages Corporation. There is nothing on record to indicate that the contraband involved in this case was exclusively meant for sale in the State of Goa. In the said circumstances, merely because there was no sticker of the Beverages Corporation of Kerala on the bottles, it cannot be said that the contraband found in possession of the appellant was illegally imported liquor. In the said circumstances, the offence under Section 55 (a) of the Abkari Act will not be attracted in this case, particularly when there is no evidence that the possession of the liquor was in the course of import. Crl.A. No.88 of 2015 -6- 9. The appellant was found in possession of 17.1 litres of Indian Made Foreign Liquor, which was no doubt in excess of the quantity permissible under law during the period in question. Therefore, the appellant shall be liable to be convicted under Section 63 of the Abkari Act. For the said reason, 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 convict the appellant under Section 63 of the Abkari Act. 10. The learned counsel for the appellant has pleaded for leniency in the matter of sentence. The appellant was in custody from 1.9.2010 to 11.10.2010 in connection with this case. There is no previous conviction against the appellant. Considering the facts and circumstances of the case, I am of the view that the appellant can be sentenced to imprisonment the period of detention already undergone by the appellant in this case and a fine of Rs.5,000/- (Rupees five thousand only) and in default to simple imprisonment for two months under Section 63 of the Abkari Act to meet the ends of Crl.A. No.88 of 2015 -7- justice and accordingly I order so. In the result, this appeal stands allowed in part as above. Scl/10.02.2016 Sd/- **B. SUDHEENDRA KUMAR JUDGE** True Copy PA to Judge