Sathyan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938 CRL.A.No. 1132 of 2008 ( ) --------------------------SC 1113/2006 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA APPELLANT/ACCUSED: ------------------------------ SATHYAN, S/O.POKKAN, AGED 43 YEARS, CHERINHA PARAMBATH HOUSE, VANIMAL AMSOM & DESOM, POST.VANIMAL, VIA: KALLACHI, VADAKARA TALUK, KOZHIKODE DISTRICT. ## BY ADV. SRI.T.K.KUNHABDULLA RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, VADAKARA EXCISE RANGE, THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PUBLIC PROSECUTOR, SHRI M V ANANTHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.1132 of 2008 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of January 2017 ## JUDGMENT The court below convicted the appellant under Section 55(a) of the Abkari Act and sentenced the appellant thereunder to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for six months. 2. The prosecution allegation is that on 7.7.2004 at 12.30 p.m., the appellant was found transporting 3.75 litres of Indian Made Foreign Liquor from Mahe to Kerala, in contravention of the provisions of the Abkari Act. Crl.A.1132/2008 **==> picture [24 x 13] intentionally omitted <==** 3. Before the trial court, PW1 to PW9 were examined and Exts.P1 to P9 were marked for the prosecution. No evidence was adduced from the side of the appellant. 4. Heard. 5. The learned counsel for the appellant has argued that since there is no evidence to hold that the appellant was in possession of the liquor in the course of illegal import, transport or transit, the appellant cannot be convicted under Section 55(a) of the Abkari Act. The learned counsel relied on the decision of the Division Bench in Mohanan v. State of Kerala [2007 (1) KLT 845] to buttress his argument. In Mohanan (supra), the court held that S.55(a) of the Abkari Act is applicable only when persons illegally import or transport liquor or in possession of liquor while illegally importing. Crl.A.1132/2008 **==> picture [24 x 13] intentionally omitted <==** 6. In this case, it is alleged that the appellant was travelling in a bus with the contraband articles. PW1 was the detecting Officer, who detected the offence and seized the contraband. PW2 also supported the evidence of PW1 in all material aspects. PW3 was the conductor of the bus and PW4 was the driver of the bus who did not support the prosecution case. Therefore, regarding the occurrence, there is only the evidence of PW1 and PW2. PW1 did not state that the appellant had imported liquor from Mahe into the State of Kerala. PW2 also did not state so. PW8 was the Investigating officer, who did not conduct any investigation regarding the said aspect. The bus ticket of the appellant was also not seized or produced before the court. The appellant is a resident of the same locality as per his address shown in the records. It is true that Ext.P7 Crl.A.1132/2008 **==> picture [24 x 13] intentionally omitted <==** inventory would show that the contraband articles were having the labels 'For sale in Pondicherry only'. However, Ext.P1 seizure mahazar is silent with regard to the same. The evidence of PW1 and PW2 is also silent regarding the said aspect. If at all the bottles contained the label 'For sale in Pondicherry only', it cannot give rise to the presumption that the said bottles were imported from Mahe into the State of Kerala. This court in Tippu Mohammed v. State of Kerala [2015(1) KLD 59] held that in the absence of any evidence to prove that the liquor possessed by the accused was imported from outside the State, the mere production of bottles with the labels cannot be sufficient to prove the offence under Section 55(a) of the Abkari Act. 7. In this case, there is label that the articles were meant for sale in Pondicherry only as per Ext.P7. Crl.A.1132/2008 **==> picture [24 x 13] intentionally omitted <==** However, in the absence of evidence to show that the liquor was imported by the appellant, the offence under Section 55(a) of the Abkari Act cannot be attracted. It is true that Ext.P1 mentions that the bottles did not contain the sticker of Kerala State Beverages Corporation. This Court in Venu K.V. v. State [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 Mahe or other States. In this case, Ext.P1 would show that the bottles did not contain the seal of the Kerala State Beverages Corporation. However, no evidence was adduced from the side of the prosecution to show that the contraband articles were imported from other states. No evidence is available before the court to show that the contraband articles involved in this case were imported Crl.A.1132/2008 **==> picture [24 x 13] intentionally omitted <==** from outside the state. There is absolutely no evidence to prove that the appellant was in possession of the contraband while illegally importing or he illegally imported or transported the liquor. In view of the above reasons, the offence under Section 55(a) of the Abkari Act is not attracted in this case and in the said 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. 8. The appellant was found in possession of a total quantity of 3.75 litres of Indian Made Foreign Liquor on 7.7.2004. The permissible quantity of Indian Made Foreign Liquor which a person could possess during the relevant period was 3 litres as per S.R.O. No.725/2003. Therefore, there can be no doubt that the appellant was in Crl.A.1132/2008 : 7: possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law during the period in question. Therefore, the appellant is, no doubt, liable to be convicted under Section 63 of the Abkari Act. Accordingly, I convict the appellant under Section 63 of the Abkari Act. 9. As regards the sentence, the learned counsel has pleaded for leniency. No previous conviction has been proved against the appellant. The appellant was under detention in connection with this case from 7.7.2004 to 21.7.2004. Considering the facts and circumstances of the case, including the quantity of Indian Made Foreign Liquor involved in this case, I am of the view that the appellant can be sentenced to imprisonment to the period of detention already undergone by him in connection with this Crl.A.1132/2008 : 8: case and a fine of Rs.5,000/- (Rupees five thousand only) and in default to simple imprisonment for one month, to meet the ends of the justice and accordingly, I order so. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the trial court on 1.3.2017 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.17.1.2017_ _// True Copy //_ _PA to Judge_