Saseendran s/o Krishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 CRL.A.No. 574 of 2013 () ------------------------- SC 613/2011 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT(S): ------------ SASEENDRAN S/O.KRISHNAN, MEER (H), ERAPURAM, CHORODE P.O, VATAKARA, KOZHIKODE. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): ---------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.574 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of March 2016 ## JUDGMENT The accused in S.C.No.613 of 2011 on the files of the Additional Sessions Court (Adhoc-II), Kozhikode 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 8.5.2010 at about 7.30 a.m., the appellant was found transporting 18.750 litres of Indian Made Foreign Liquor in his jeep bearing Reg.No.KL-11A-7277, in contravention of the provisions of the Abkari Act. ## Crl.A.574 of 2013 : 2 : 4. The offence was detected by PW1, who was the Prventive Officer of the Excise Circle during the relevant period. The appellant was arrested from the spot and the contraband was seized as per Ext.P2 mahazar by PW1. Thereafter, he produced the appellant and the contraband articles before PW4 along with the contemporary records, who in turn registered the crime. The investigation was conducted by PW6. After completing the investigation, PW6 filed the final report before court. 5. Before the court below, PW1 to PW6 were examined and Exts.P1 to P8 were marked for the prosecution. No evidence was adduced from the side of the appellant. 6. The learned counsel for the appellant has argued Crl.A.574 of 2013 : 3 : that since there was no evidence before the court that the appellant was found in possession of the contraband in the course of illegal import, the offence under Section 55(a) of the Abkari Act cannot be attracted and consequently, the appellant is entitled to acquittal. 7. In this case, the contraband seized was Indian Made Foreign Liquor. There was no seal of the Kerala State Beverages Corporation on any of the bottles. This Court in Venu K.V. v. State [2013(1) KLJ 7] held that there is no presumption that all liquor bottles without the seal of the State Beverages Corporation are imported from Mahe or other State. In this case, no investigation was conducted to ascertain as to whether the contraband involved in this case had been imported from outside the state by the Crl.A.574 of 2013 : 4 : appellant. There is also no evidence before the court to prove that the contraband involved in this case had been imported into the state by the appellant. In the said circumstances, merely because the bottles did not contain the seal of the State Beverages Corporation, it cannot give rise to a presumption that the contraband seized in this case had been imported into the state by the appellant. 8. The Division Bench of this court in Mohanan v. State of Kerala [2007 (1) KLT 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. In this case, there is nothing before the court to prove that the appellant was in possession of the liquor in the course of illegal import and in the said Crl.A.574 of 2013 : 5 : 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. 9. The appellant was found in possession of 18.75 litres of Indian Made Foreign Liquor. The maximum quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was three litres as per S.R.O. No.725/2003 dated 2.8.1993. Therefore, there can be no doubt that the appellant was in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law during the relevant period. In the said circumstances, the appellant stands liable to be convicted under Section 63 of the Abkari Act and Crl.A.574 of 2013 **==> picture [29 x 13] intentionally omitted <==** accordingly, the appellant stands convicted under Section 63 of the Abkari Act. 11. As regards the sentence, the learned counsel for the appellant has pleaded of leniency. The appellant was in custody in this case from 8.5.2010 to 27.5.2010 as an under -trial prisoner. The appellant was aged 48 years during the relevant period. Presently, the appellant is aged 54 years. 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 to the period of detention already undergone by the appellant in connection with this case and a fine of Rs.5,000/- (Rupees five thousand only) and in default to simple imprisonment for one month under Section 63 of the Abkari Act, to secure Crl.A.574 of 2013 : 7 : 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 18.5.2016 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/1.4..2016_ _// True Copy //_ _PA to Judge_