T. Prakashan v. State of Kerala

**CRL.A NO. 673 OF 2008** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 CRL.A NO. 673 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 1254/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY** ## **APPELLANT/S:** T.PRAKASHAN S/O GOVINDAN, VAYALAN HOUSE, MANATHANA AMSOM, PERAVOOR,, KANNUR DT. BY ADV SRI.P.NARAYANAN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ## **OTHER PRESENT:** SMT.MAYA.M.N, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.A NO. 673 OF 2008** **2** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------Crl.Appeal No. 673 of 2008 -------------------------------------Dated this the 8[th] day of August, 2022** ## **JUDGMENT** The appellant is an accused in SC No. 1254/2005 on the file of the Addl.Sessions Judge (Adhoc) I, Thalassery. The above case is chargesheeted against the appellant alleging offences punishable under Secs.55(a) of the Abkari Act. 2. The prosecution case is that on 26.10.2003 at 7.40 pm, the accused was found transporting one bottle of 750 ml, 3 bottles 375 ml each and 3 bottles of 180 ml each Indian Made Foreign Liquor, which are saleable in Pondicherry in a taxi jeep bearing registration No. KL-11-E 8293 at Chemmad and thus committed the offence. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P8 are marked exhibits. After going through the evidence and the documents, the trial court found that the accused committed the offence **CRL.A NO. 673 OF 2008 3** punishable under Sec.55(a) of the Abkari Act and he is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for 15 days. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. The counsel for the appellant submitted that even if the entire prosecution case is accepted, the accused was found in possession of only 2.5 litres of Indian Made Foreign Liquor, which is the permissible limit as per the then existing Government Order, which was issued under Sec.13 of the Abkari Act. The counsel submitted that there is no evidence adduced by the prosecution to show that the accused brought the IMFL into the State of Kerala from some place which lies outside the State. The counsel relied the judgment of this Court in **Narayanan Nair v. State of Kerala** [2011 (3) KLT 722]. **CRL.A NO. 673 OF 2008** **4** The counsel also submitted that the alleged seizure was within the jurisdiction limits of Panur Police Station. The part of investigation was conducted by the Sub-Inspector of Police, Kolavellur, who is not authorised as per the Abkari Act. The counsel submitted that for that reason also, the trial is vitiated. 5. This Court considered the contentions of the appellant and the Public Prosecutor. Admittedly, the total quantity of the Indian Made Foreign Liquor seized from the appellant is only 2.5 litres. There is no evidence to show that the accused brought this liquor from another state. This point is considered by this Court in detail in **Narayanan Nair's** case (supra). It will be better to extract the relevant paragraphs of ## **Narayanan Nair's** case (supra). “11. The act of 'bringing' is different from being in 'possession'. A person who is found to be in 'possession' of a contraband article within the State may not be the one who has brought it into the State. So, only because a person is found to be in 'possession' of a contraband article, it cannot be concluded that he himself brought the article into the State. A person shall not be convicted for offence under S.55(a) read with R.9 of the Rules, solely for the reason that he was found in **CRL.A NO. 673 OF 2008** **5** 'possession' of IMFL. Prosecution must prove that accused brought IMFL into the State. It can be proved either by direct evidence or by circumstantial evidence. 12. Now, coming to the facts of this case, I find that PW 1 to PW 3 were examined to prove that accused 'imported' IMFL. None of them is an eye witness to such 'bringing'. None of them stated that accused 'brought' IMFL into Kerala from any place situated outside Kerala. PW 2 is the Preventive Officer, who supported prosecution to prove search and seizure. He stated that petitioner was found in a bus plying in Thalassery - Vadakara route via Mahe and he was having 10 bottles of IMFL in his possession at that time. 13. The mere presence of an accused in a bus plying between two places situated within the State of Kerala en - route Mahe (a place which lies outside the territorial limits of the State) with some bottles of IMFL will not prove that he 'imported' IMFL. The absence of stickers of KSBC on such bottles will also not by itself prove that those are 'imported' by the accused who is found to be in possession of the same. Neither of the above facts are sufficient to hold a person guilty of offence under S.55(a) of the Act read with R.9 of the Rules, even though those may be two circumstances, coupled with proof of some other circumstances which may prove 'import', depending upon facts and circumstances of each case.” 6. In the light of the same, the simple possession of the India Made Foreign Liquor within the limit prescribed by the **CRL.A NO. 673 OF 2008 6** Government will not constitute an offence under Sec.55(a) of the Abkari Act. 7. Moreover, PW4 is a Sub-Inspector of Police , Kolavelloor Police Station. Admittedly, the alleged seizure happened within the jurisdiction of Panur Police Station. The investigation by an unauthorised officer will vitiate the trial. This point is considered by this Court in **Moothedath Shivadasan and anr. v. State of Kerala** [2021 (1) KLT 744]. The relevant paragraph is extracted hereunder : “10. Admittedly, the occurrence in this case took place within the jurisdiction of the Iritty Police Station. As per S.70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof. There is nothing on record to show that the Sub Inspector of Police Karikkottakary has jurisdiction to conduct investigation in respect of an Abkari offence within the jurisdiction of Iritty Police Station. When PW6 was examined before court, his competency to conduct investigation in respect of an offence within the Iritty Police Station has not been explained. A Sub **CRL.A NO. 673 OF 2008** **7** Inspector of Police, authorised to act as an Abkari Officer, can exercise his jurisdiction only within the territorial limits of his Police Station. It pre – supposes that PW6 was incompetent to conduct investigation touching an offence relating to the Act within the jurisdiction of the Iritty Police Station. A learned single bench of this Court had occasion to consider an identical matter in Saji @ Kochumon v.State of Kerala [2010 (3) KLT 471] and held that the Sub Inspector of Police authorised to act as Abkari officer within his jurisdiction alone is competent to exercise jurisdiction within the territorial limits of his Police Station. It goes without saying that he cannot travel beyond the territorial limits of jurisdiction and conduct investigation relating to an Abkari offence outside his jurisdiction. Hence, in the absence of an order conferring powers to conduct investigation, any investigation alleged to have been done by PW6 is illegal and without jurisdiction. Sub Inspector of Police, Iritty was appointed as the Abkari Officer within the Iritty territorial limits of his police station by notification SRO 321/1996 issued by the Government in exercise of power provided under S.4 of the Act. S.3 (21 A) of the Act defines the term police station. As per S.3 (21 A), it includes any place which the Government may, by notification, declare to the police station for the purpose of the Act. Thus the respective jurisdiction could only be the jurisdiction of his police station.” 8. In the light of the above discussion, the appellant is entitled the benefit of doubt. **CRL.A NO. 673 OF 2008** **8** Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 25.2.2008 in S.C. No.423/2005 on the file of the Addl.Sessions Judge, Adhoc-I, Thalassery is set aside and the appellant is set at liberty. The bail bonds, if any, executed by the appellant, are cancelled. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS