Ravi P.T. 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. 495 of 2013** **SC 596/2011 of ADDL.SESSIONS COURT (ADHOC-II), KOZHIKODE ----------------** ## **APPELLANT(S)/APPELLANT/ACCUSED** **RAVI.P.T., AGED 62, S/O.KUNHIRAMAN,PILATHOTTATHIL HOUSE, PANTHALAYANI AMSOM DESOM,KOYIOLANDI TALUK,KOZHIKODE DISTRICT** **BY ADVS.SRI.S.K.SAJU SRI.A.RANJITH NARAYANAN SMT.A.SIMI SMT.VIDYA V.DEVAN** ## **RESPONDENT(S)/RESPONDENT/RESPONDENT.COMPLAINANT:** **STATE OF KERALA REPRESENTED BY EXCISE RANGE INSPECTOR,VATAKARA EXCISE RANGE,REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA** **BY 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:** ## **STK** ## **B. SUDHEENDRA KUMAR, J.** **-------------------------------Crl.Appeal No.495 of 2013 ----------------------------------** Dated this the 9[th] day of April, 2018 ## **JUDGMENT** The appellant is the accused in S.C.596/2011 on the files of the court below. 2. The prosecution allegation is that on 17.04.2008 at about 3 pm, the appellant was found in possession of 5.670 litres of Indian Made Foreign Liquor in a KSRTC bus bearing registration No.KL15-6532, in contravention of the provisions of the Abkari Act. It is further alleged that the said contraband articles were imported by the appellant into the State of Kerala from Mahi. 3. The offence was detected by PW1, who was the then Preventive Officer of the Excise Range Vatakara. When the above said KSRTC bus was checked, the appellant was found in possession of six bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 ml each and 19 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 180 ml each in a bag, in **Crl.Appeal No.495 of 2013** ## **-: 2 :-** contravention of the provisions of the Abkari Act. The appellant was arrested from the spot and the contraband articles were also seized as per Ext.P2 mahazar. Samples were also drawn from the contraband by PW1. Thereafter, the accused, the contraband articles and the contemporary records were produced before PW4, who in turn registered Ext.P3 crime and occurrence report. The investigation was conducted by PW5. After completing the investigation, PW5 filed the final report before the court. 4. In the trial, the prosecution examined PW1 to PW5 and marked Exts.P1 to P9. No evidence was adduced on the side of the defence. 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 simple imprisonment for three years and a fine of Rupees One lakh with a default clause for simple imprisonment six months under Section 55(a) of the Abkari Act, ## **Crl.Appeal No.495 of 2013** ## **-: 3 :-** 5. Heard. 6. The learned counsel for the appellant has submitted that since there is no evidence before the court below to show that the contraband articles were imported by the appellant from the State of Pondicherry, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act cannot be sustained. 7. In Mohanan v. State of Kerala [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 possess liquor while illegally importing. 8. This Court in Tippu Muhammed v. State of Kerala [2014 KHC 852 : 2015(1) KLJ 57] 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, it cannot be said by the mere production of bottles with labels that the contraband articles were meant for sale in Karnataka, that the **Crl.Appeal No.495 of 2013** ## **-: 4 :-** prosecution has discharged its burden of proving the guilt. 9. In this case, PW1 stated that the appellant was found travelling in a KSRTC bus bearing No.KL15-6532. PW3 was the conductor of the said bus. He also stated that the appellant was travelling in the said bus and when the said bus reached Azhoor Excise Check Post, the contraband articles were seized from the possession of the appellant, who was sitting on the back seat of the said bus. However, PW3 did not state about the number of the bus. PW3 also did not state about the place from where the appellant got into the bus. The evidence of PW1 is also silent in this regard. The only evidence is that the bus was plying from Kannur to Kozhikode. However, in the absence of any evidence that the appellant got into the bus from Mahi, it cannot be said that the appellant imported the contraband into the State of Kerala from Mahi. No investigation in this regard was also conducted by PW1. There is also no evidence as to whether the bottles contained the seal of the State Beverages ## **Crl.Appeal No.495 of 2013** ## **-: 5 :-** Corporation or not. However, it is not stated in the Mahazar that the seal of the State Beverages Corporation was there in the bottles. Therefore, it has to be inferred that the bottles did not contain the seal of the State Beverages Corporation. 10. This Court in K.V. Venu v. State of Kerala [2013 (1) KLJ 7] held that there cannot be any presumption that all liquor bottles without the seal of the State Beverages Corporation are imported from Mahi or other States, in the absence of any evidence in this regard. In this case, there is absolutely no evidence to show that the appellant had imported the contraband from outside the State. Since no investigation was conducted in this regard by PW1 or PW5, no material could be collected by the prosecution to prove that the contraband involved in this case had been imported to the State by the appellant. Not even the ticket of the bus in which the appellant was travelling was seized and produced before the court. At least by the production of the said ticket, the prosecution could have **Crl.Appeal No.495 of 2013** **-: 6 :-** proved that the appellant got into the bus from Mahi. The prosecution in this case could not prove the place from where the appellant got into the bus. In the absence of any such ticket and in the absence of any investigation in this regard, it cannot be said that the articles possessed by the appellant were imported into the State by the appellant from Mahi. 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. 11. However, the evidence on record, including the Ext.P9 would show that the appellant was in possession of 5.670 litres of Indian Made Foreign Liquor on 17.04.2008. The maximum quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was three litres as per SRO No.725/2003 dated 2.8.2003. Therefore, the appellant was no doubt in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Consequently, the appellant is **Crl.Appeal No.495 of 2013** ## **-: 7 :-** liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the appellant under Section 63 of the Abkari Act. 12. The appellant was in jail in connection with this case from 17.04.2008 to 25.06.2008. The appellant was aged 53 years in 2012. Therefore, the appellant is presently aged 59 years. No previous conviction has been proved against the appellant. Considering the facts and circumstances of the case, including the quantity of contraband seized, I am of the view that the appellant can be sentenced to imprisonment to the period of detention already undergone by the appellant in this case and a fine of Rs.3000/- with a default clause for simple imprisonment for ten days, to meet the ends of justice. It is ordered accordingly. In the result, this appeal stands allowed in part as above. However, if the appellant had already deposited Rs.5000/- before the court below as directed by this Court **Crl.Appeal No.495 of 2013** ## **-: 8 :-** as per order dated 12.04.2013 in CMA 2865/2013, the appellant need not deposit any amount to comply with the direction of payment of fine in this judgment. The appellant is also entitled to reimbursement of the excess amount deposited by the appellant, from the trial court. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//