Ramesan & others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940 CRL.A.No. 150 of 2010 SC 251/2007 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 01-01-2010 APPELLANT(S)/ACCUSED: RAMESAN, KAMBIVALAPPIL, IRINGAL AMSOM, AYANIKKAD DESOM. BY ADV.SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S)/COMPLAINANT:: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PUBLIC PROSECUTOR SRI. E.C. BINEESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. -------------------------Crl.Appeal No. 150 of 2010 ------------------------ Dated this the 9[th] day of April, 2018 ## JUDGMENT The appellant is the accused in S.C. No. 251 of 2007 on the files of the court below. 2. The prosecution allegation is that on 29-112004 at about 8.20 a.m., the appellant was found importing 15 litres of Indian Made Foreign Liquor from Mahe to Kerala in a bus, in contravention of the provisions of the Abkari Act. 3. The offence was detected by PW1 and party. PW1 arrested the appellant and seized the contraband as per Ext. P1 mahazar. PW1 had also drawn the sample from the contraband. PW1 also registered Ext. P3 FIR. The investigation was conducted by PW1. After verifying the investigation conducted by PW1, PW4 filed the final report before the court. Crl.Appeal No. 150 of 2010 -2- 4. In the trial, PW1 to PW4 were examined and Exts. P1 to P6 were marked for the prosecution, besides identifying MO1 series to MO3. No evidence was adduced on the side of the defence. 5. After evaluating the evidence, the court below found the appellant guilty under Section 55 (a) of the Abkari Act and convicted him thereunder and sentenced him to rigorous imprisonment for one year and a fine of Rs. 1,00,000/- with a default clause for rigorous imprisonment for six months. 6. Heard. 7. PW1 was the Sub Inspector of Payyoli Police Station on 29-11-2004. On the day, at about 8 a.m. , PW1 found the appellant getting down from bus bearing Reg. No. KL11Q-3517 with a bag in his hand, when the said bus was stopped as directed by PW1. On inspection, it was found that the said bag contained 16 bottles of Indian Made Foreign Liquor. On the search of Crl.Appeal No. 150 of 2010 -3- the person of the appellant, PW1 could detect 7 bottles tied around the waist of the appellant. The said bottles were seized by PW1 as per Ext. P1 mahazar. Samples were also drawn from the contraband. He arrested the appellant from the spot. The evidence of PW1 is corroborated by the evidence of PW2, who also accompanied PW1 at the relevant time. However, PW2 stated that he did not inspect the label found on the bottles. PW3 was the independent witness examined by the prosecution to prove the seizure and the arrest of the appellant. However, PW3 did not support the prosecution case. 8. PW1 stated that the appellant got down from a bus bearing Reg. No. KL 11Q-3517 at about 8 am on 29-11-2004. However, PW1 stated that he did not notice about the place from which the said bus was coming. PW4 stated that the said bus was a bus having a route permit from Vadakara to Koyilandy. PW1 stated during the cross-examination that 9 bottles contained the sticker “for sale in Pondicherry only”. However, PW1 Crl.Appeal No. 150 of 2010 -4- did not have any such case during his examination-inchief. Ext. P1 mahazar contains the description of the bottles including the description of the label on the bottles. The description of the labels on the bottles does not show that the contraband articles were meant for sale in Pondicherry only. PW1 stated in his crossexamination that eventhough it was not stated in Ext. P1 that the contraband was meant for sale in Pondicherry only, he stated so in Ext. P3 FIR. However, Ext. P3 does not mention that the labels contained the inscription “for sale in Pondicherry only”. It is not discernible as to why PW1 could not record in Ext. P1 that the labels on the bottles contained the inscription “for sale in Pondicherry only” if there had been any such inscription on the labels. PW2, who accompanied PW1, pleaded ignorance with regard to any such inscription on the labels on the bottles seized. There is also no other evidence to show that the bottles contained the inscription “for sale in pondicherry only”. In view of the above reasons, it is very difficult to believe the evidence of PW1 that nine of the bottles seized from the appellant Crl.Appeal No. 150 of 2010 -5- contained the label having the inscription “for sale in Pondicherry only”. 9. This Court in Tippu Muhammad v. State of Kerala and Another [2014 KHC 852] =[2015 (1) KLD 59] held that by mere production of bottles with labels that the contraband articles were meant for sale in Karnataka, it cannot be said that the prosecution has discharged its burden of proving the guilt of the accused, in the absence of any evidence to prove that the liquor allegedly possessed by the appellant was imported in violation of the provisions of the Abkari Act. 10. The Division Bench of this Court in Mohanan v. State of Kerala [2007 (1) KHC 845], 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. 11. In this case, PW1 did not state that he had conducted any investigation to show that the contraband Crl.Appeal No. 150 of 2010 -6- articles were seized while they were in the course of import by the appellant. There is also absolutely no evidence to show that the contraband articles seized were imported by the appellant into the State of Kerala. In the absence of any evidence, if at all it is assumed that nine of the bottles contained the label having the inscription “for sale in Pondicherry only”, it cannot be said that the appellant imported the said articles from other States. It is also not made clear as to whether the bottles contained the sticker of the Kerala State Beverages Corporation or not. 12. This Court in K.V. Venu v. State [2013 (1) KLJ 7] held that there is no presumption that all liquor bottles without seal of the State Beverages Corporation are imported from Mahe or other States, in the absence of any evidence in this regard. 13. In this case, there is absolutely no evidence before the court to show that the contraband articles were imported into the State of Kerala by the appellant. In the said circumstances, even if the bottles did not contain the Crl.Appeal No. 150 of 2010 -7- seal of the State Beverages Corporation, it cannot be said that the contraband articles were imported from Mahe or other States. The bus ticket of the appellant was also not seized and produced before the Court. The Conductor and the driver of the bus, in which the appellant had allegedly travelled, were also not cited as witnesses or examined before the Court. In view of the above reasons, it cannot be said that the prosecution could establish that the appellant possessed the contraband in the course of import of the same from Mahe or other States. 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. 14. It has been proved from the evidence of PW1 and PW2 that the appellant was in possession of 15 litres of Indian Made Foreign Liquor on 29-11-2004 at about 8 a.m. 15. During the relevant period, the maximum quantity of Indian Made Foreign Liquor which a person Crl.Appeal No. 150 of 2010 -8- could possess was 3 litres as per SRO No. 725 of 2003 dated 2-8-2003. Therefore, the appellant was, no doubt, in possession of excess quantity of Indian Made Foreign Liquor than what was, permissible in law. Consequently, the appellant is liable to be convicted under Section 63 of the Abkari Act. Accordingly, the appellant stands convicted under Section 63 of the Abkari Act. The judgment impugned would show that the appellant was in custody from 29-11-2004 to 28-12-2004. The appellant is presently aged 52 years. Considering the facts and circumstances of the case, including the age of the appellant and the period elapsed since the occurrence , I am of the view that the appellant can be sentenced to imprisonment to the period of detention already undergone by the appellant in connection with this case and a fine of Rs. 5000/- (Rupees five thousand only) with a default clause for simple imprisonment for 15 days, to meet the ends of justice. It is ordered accordingly. In the result, this Appeal stands allowed in part as above. Crl.Appeal No. 150 of 2010 **==> picture [17 x 8] intentionally omitted <==** If the appellant had already deposited Rs. 10,000/- (Rupees ten thousand only) as directed by this Court as per order dated 21-1-2010 in Crl.M.A. 782 of 2010, the appellant need not deposit any further amount to comply with the direction of payment of fine in this judgment. The appellant is also entitled to re-imbursement of the excess amount, if any, already deposited. ## Sd/- **B. SUDHEENDRA KUMAR, (Judge)** ani/