Sivan alias Sivarajan v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2017-01-20
Court Decision / Holding: The appeal is allowed; setting aside the conviction and sentence under Section 55(a) of the Abkari Act; the appellant stands acquitted; bail bond discharged.
Final Disposition: Acquitted

Parties to the Case

Appellants / Petitioners

Sivan alias Sivarajan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Eldho Paul

Counsels for Respondents

• Sri C. K. Prasad

Case Synopsis & Summary

This is a Kerala High Court criminal appeal filed by Sivan alias Sivarajan challenging a conviction under Section 55(a) of the Abkari Act for possession of 2.205 litres of Indian Made Foreign Liquor. The appellant was convicted by the court below, and the appeal contends that there is no evidence that the liquor was imported, exported, transported, or transited illegally, so Section 55(a) does not apply. The defence relies on Mohanan v. State of Kerala to argue that Section 55(a) applies only when illicit import or transport occurs or when possession coincides with illegal import. The court notes that the bottles bore labels suggesting sale in Pondicherry and cites Tippu Mohammed v. State of Kerala and Venu K.V. v. State to emphasize that absence of a State Beverages Corporation seal or labeling alone does not prove import from outside the state. The court observes no evidence showing illegal import, and points out that the quantity possessed (2.205 litres) was within the permissible limit of 3 litres under SR.O. 725/2003, so no offence was established. Consequently, the conviction under Section 55(a) cannot be sustained. The appeal is allowed, the conviction and sentence are set aside, the appellant is acquitted, and the bail bond is discharged.

Provisions of Law Cited

Section 55(a) of the Abkari ActS.R.O. No. 725/2003

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that there is no evidence showing possession of contraband liquor in the course of illegal import, export, transport or transit; relied on Mohanan v. State of Kerala to contend that Section 55(a) is applicable only to illegal import/transport or possession during illegal importing.

Contentions of Respondents

Not explicitly stated in the judgment.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohanan v. State of Kerala	2007 (1) KLT 845	Positive	Cited to support the proposition that Section 55(a) applies only when there is illegal import/transport or possession during illegal importing; the present case lacks such evidence.
Tippu Mohammed v. State of Kerala	2015(1) KLD 59	Positive	Cited to reinforce that mere labeling or absence of evidence of import is insufficient to prove 55(a).
Venu K.V. v. State	2013(1) KLJ 7	Positive	Cited to reject presumptions that bottles without seals are imported from outside the state.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938 CRL.A.No. 1221 of 2008 ( ) --------------------------SC 130/2006 of ADDL.SESSIONS. COURT (ADHOC)-II, KALPETTA APPELLANT/ACCUSED: ------------------------------- SIVAN ALIAS SIVARAJAN, AGED 39 YEARS, S/O.PERIYASAMY PUTHANPURA COLONY, KUZHINILAM, MANANTHAVADY. ## BY ADV. SRI.ELDHO PAUL ## RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.1221 of 2008 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of January 2017 ## JUDGMENT The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act. 2. The prospection allegation is that on 2.10.2004 at 5.30 p.m., the appellant was found in possession of 2.205 litres of Indian Made Foreign Liquor, in contravention of the provisions of the Abkari Act. 3. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P7 were marked for the prosecution, besides identifying MO1 series to MO3. No evidence was adduced from the side of the appellant. Crl.A.1221/2008 : 2 : ## 4. Heard. 5. The learned counsel for the appellant has argued that since there is no evidence to show that the appellant was in possession of the contraband in the course of illegal import, export, transport or transit, the offence under Section 55(a) of the Abkari Act is not attracted. The learned counsel relied on the decision in Mohanan v. State of n Kerala [2007 (1) KLT 845] to buttress his argument. I Mohanan (supra), the court 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. 6. In this case, the bottles contained the label that the contraband articles were meant for sale in Pondicherry ## Crl.A.1221/2008 **==> picture [25 x 11] intentionally omitted <==** only. This Court in Tippu Mohammed v. State of Kerala and another [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, no evidence is available before the court to show that the liquor possessed by the appellant was imported from outside the State by the appellant. It is true that there is no sticker of State Beverages Corporation on the bottles. In Venu K.V. v. State [2013(1) KLJ 7], the court Crl.A.1221/2008 : 4 : 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, there is no evidence to show that the appellant had imported the contraband from outside the State. Therefore, the mere fact that the bottles did not contain the sticker of the Kerala State Beverages Corporation, it cannot be said that the said bottles were imported into the state from outside the state. No evidence was adduced in this case to prove that the appellant was found in possession of the liquor in the course of illegal import, export, transport or transit. In the absence of any evidence to show that the appellant was found in possession of the contraband in the course of illegal import, export, transport or transit, the offence Crl.A.1221/2008 : 5 : under Section 55(a) of the Abkari Act is not attracted as held in Mohanan (supra). For the said reason, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act cannot be sustained. 8. The appellant was found in possession of 2.205 litres of Indian Made Foreign Liquor at the relevant time. The 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. In the said circumstances, the appellant was found in possession of only permissible quantity of Indian Made Foreign Liquor at the relevant time. Therefore, the appellant has not committed any offence. In view of the above reasons, the conviction and sentence passed by the court below cannot be sustained. Crl.A.1221/2008 : 6 : In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act and the appellant stands acquitted. The bail bond of the appellant stands discharged. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.20.1..2017_ _// True Copy // PA to Judge_ ## Crl.A.1221/2008 : 7 :