THAMPIRAJ v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-02-10
Court Decision / Holding: The appeal is allowed in part. The conviction under Section 55(a) of the Abkari Act is set aside. The appellant is convicted under Section 63 of the Abkari Act and sentenced to imprisonment equal to the period already undergone, plus a fine of Rs. 3,000, and in default, five days of simple imprisonment. The appellant must surrender on 8.4.2016 to serve the sentence.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

Thampiraj, S/o. Simon, 6 Murilayam, Manila Division, H.M.L. Estate, K.D.H.Village

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. M. Johny

Counsels for Respondents

• Public Prosecutor, Shri V. S. Sreejith

Case Synopsis & Summary

The judgment concerns a criminal appeal by THAMPIRAJ, accused, challenging a conviction under Section 55(a) of the Abkari Act by the III Additional Sessions Court (Adhoc-1), Thodupuzha, arising from seizure of five litres of Indian Made Foreign Liquor (IMFL) without a valid permit on 15 July 2008. During a police check of an autorickshaw, PW4 found a bag in the appellant's possession containing three 1.5-litre bottles and an additional 500 ml bottle of IMFL. Chemical analysis (Ext. P14) showed ethyl alcohol content around 40–41%. Although two independent witnesses (PW1, PW2) and another witness (PW3) did not support the prosecution, the court accepted the seizure and samples as evidence. The prosecution contended that the appellant was in possession of contraband liquor and thus liable under Section 55(a); the defense argued that possession did not occur during illegal importing and that the liquor may have been legally purchased from the Beverages Corporation of Kerala, with a permissible possession limit of three litres. The Division Bench in Mohanan v. State of Kerala (2007) held that Section 55(a) applies only to illegal import or possession during illegal importing. On appeal, the High Court held that the contraband was acquired in violation of Rule 11A, and the appellant’s conviction under Section 55(a) was set aside, substituting a conviction under Section 63 of the Abkari Act, with a sentence combining detention already undergone and a Rs.3,000 fine, plus default imprisonment; the appeal was allowed in part and a surrender date was fixed.

Provisions of Law Cited

Section 55(a) of the Abkari ActRule 11A of Foreign Liquor RulesSection 63 of the Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that since he was not found in possession of the contraband at the time of import, Section 55(a) cannot apply; the liquor exceeded the permissible quantity (five litres vs. three litres) but there is no indication of illegal import; further, the liquor was allegedly purchased from the Beverages Corporation of Kerala, suggesting legality. Therefore, conviction under Section 55(a) is inappropriate and the case should be considered under Section 63 or acquittal.

Contentions of Respondents

The prosecution contended that the appellant was in possession of contraband liquor in excess of the permissible quantity, violating Rule 11A of the Foreign Liquor Rules, which warrants conviction under Section 63 of the Abkari Act; evidence included seizure, chemical analysis, and the custodian’s testimony, establishing possession of illicit liquor.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mohanan v. State of Kerala	2007 (1) KLT 845	Distinguished	Mohanan held that Section 55(a) is applicable only when liquor is illegally imported or in possession during illegal importing; the present case lacks evidence of illegal import, so the court distinguished the applicability of 55(a) to the facts.

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 WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937 CRL.A.No. 172 of 2011 ( ) -------------------------SC 162/2009 of ADDITIONAL DISTRICT COURT (ADHOC-III), THODUPUZHA APPELLANT/ACCUSED:: -------------------------------- THAMPIRAJ, S/O.SIMON, 6 MURILAYAM, MANILA DIVISION, H.M.L.ESTATE K.D.H.VILLAGE. BY ADV. SRI.P.M.JOHNY RESPONDENT: ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM CRIME NO.276/08 OF MUNNAR POLICE, STATION. BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.172 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of February 2016 ## JUDGMENT The accused in S.C.No.162 of 2009 on the files of the III Additional Sessions Court (Adhoc -1), Thodupuzha 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 15.7.2008 at about 6 p.m., the appellant was found in possession of 5 litres of Indian Made Foreign Liquor without any valid permit or license, in contravention of the provisions of the Abkari Act. Crl.A.172/2011 : 2 : 4. The appellant was arrested from the spot and the contraband article was seized by PW1. He registered the crime. Investigation was conducted by PW4. After completing the investigation, PW4 laid the final report before the court. 5. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P14 were marked for the prosecution, besides identifying MO1 series to MO3. Ext.X1 was also marked for the prosecution. No evidence was adduced from the side of the appellant. 6. PW1 and PW2 were the independent witnesses examined by the prosecution to prove the occurrence. However, they did not support the prosecution. PW3 was Crl.A.172/2011 **==> picture [29 x 13] intentionally omitted <==** an autorikshaw driver, examined by the prosecution to prove the prosecution case. However, PW3 also did not support the prosecution case. 7. PW4 was the Sub Inspector of Police, who detected the offence. He stated that on 15.7.2008 at about 6 p.m., while he was checking the vehicles, he found an autorikshaw with the appellant inside. He signalled to stop the said autorikshaw. Accordingly, the autorikshaw was stopped. Then the appellant, who was sitting in the rear seat of the autorikshaw, came out from the autorikshaw and moved away from the autorikshaw. On getting suspicion, PW4 inspected the bag carried by the appellant. It was found that the bag contained three bottles, each Crl.A.172/2011 **==> picture [29 x 13] intentionally omitted <==** bottle having a capacity of 1½ litre each. He also found another bottle having a capacity of 500 ml. The content inside the bottles was tested by smelling and tasting the same. Then, PW4 and others were convinced that the content inside the bottles was Indian Made Foreign Liquor. Having gone through the evidence of PW4, I am satisfied that his evidence with regard to the seizure of the contraband, sampling, sealing and arrest of the appellant can be safely believed. Even though PW1 and PW2 did not support the prosecution case, they admitted their signature in Ext.P1 seizure mahazar prepared by PW4 at the spot. Ext.P14 Certificate of chemical analysis would show that the first, the second, the third and the fourth samples contained 41.04%, Crl.A.172/2011 **==> picture [29 x 13] intentionally omitted <==** 41.32%, 40.58% and 41.10% by volume of ethyl alcohol respectively. 8. The learned counsel for the appellant has argued that since the appellant was not found in possession of the contraband in the course of import, the appellant cannot be convicted and sentenced under Section 55(a) of the Abkari Act. 9. The Division Bench of this Court in Mohanan v. State of Kerala [2007 (1) KLT 845] 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. 10. There is no allegation or evidence that the Crl.A.172/2011 : 6 : appellant was found in possession of the contraband while illegally importing. There is also no allegation or evidence to the effect that the contraband involved in this case was not Indian Made Foreign Liquor purchased from Beverages Corporation of Kerala. The appellant was found in possession of 5 litres of Indian Made Foreign Liquor purchased from the Beverages Corporation of Kerala. During the relevant period, the maximum quantity of Indian Made Foreign Liquor which a person could possess was three litres. Therefore, the appellant was found in possession of excess quantity of Indian Made Foreign Liquor than what was permissible under law. Therefore, there was violation of Rule 11A of Foreign Liquor Rules, Crl.A.172/2011 : 7 : which is punishable under Section 63 of the Abkari Act. In the said circumstances, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act stands set aside and the appellant is convicted under Section 63 of the Abkari Act. 11. The appellant was in custody from 15.7.2008 to 24.7.2008 in connection with this case. 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.3,000/- (Rupees three thousand only) and in default to simple imprisonment secure for five days under Section 63 of the Abkari Act, to Crl.A.172/2011 : 8 : 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 8.4.2016 to suffer the sentence. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/10.2..2016_ _// True Copy // PA to Judge_