Vakkachan @ Varghese S/o Vargheese Vangackal House, Areacode AMSOM, Oorangottiri Taluk, Malappuram District v. Excise Inspector, Vatkara Range, Vatkara, Kozhikode District; State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **CRL.A.No.2767 of 2008** **AGAINST THE ORDER/JUDGMENT IN SC 144/2007 of ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA DATED 30-10-2008** ## **APPELLANT/S:** **VAKKACHAN @ VARGHESE S/O VARGHESE VANGACKAL HOUSE, AREACODE AMSOM,, OORANGOTTIRI TALUK, MALAPPURAM DIST.** **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENT/S:** **1 EXCISE INSPECTOR, VATAKARA VATAKARA EXCISE RANGE, VATAKARA, KOZHIKODE DIST. 2 STATE OF KERALA REP. BY THE PUBLIC REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULM.** ## **OTHER PRESENT:** **SRI.E.C.BINEESH,PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No.2767 of 2008** -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.** **2. The prosecution allegation is that on 24.01.2005 at 3.30 p.m., the appellant was found in possession of 14 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 ml each, in a bus bearing Reg. No.KL.11.N.707, in contravention of the provisions of the Abkari Act.** ## **3. Heard.** **4. The learned counsel for the appellant has argued that since there is no evidence to show that the appellant possessed the** **CRL.A.No.2767 of 2008** -3- **contraband in the course of illegal import, transport or transit, the offence under Section 55(a) of the Abkari Act is not attracted and consequently, the appellant is entitled to be acquitted.** **5. It is in the evidence of PW1 and PW2 that the appellant was found in possession of 5.25 litres of Indian Made Foreign Liquor on 24.01.2005 at about 3.30 p.m. Even though it is alleged that the appellant travelled from Mahe to Kozhikode in the bus, even the bus ticket of the appellant was not seized and produced before the court. The seized bottles contained the label 'for sale in Pondicherry only'. However, this Court in Tippu Mohammed v. State of Kerala [2014 KHC** ## **CRL.A.No.2767 of 2008** -4- **852 : 2015(1) KLD 59] held that by mere production of bottles with the label that the liquor was meant 'for sale in Pondicherry only', it cannot be said, in the absence of any evidence to prove that the liquor possessed by the accused was imported in violation of the provisions of the Act, that the prosecution has discharged its burden of proving the guilt.** **6. In this case, even though there was label on the bottles to the effect that the** **contraband was meant 'for sale in Pondicherry only', there is absolutely no evidence before the Court to prove that the appellant imported the said bottles containing the liquor. No investigation was** ## **CRL.A.No.2767 of 2008** **also conducted in this regard. In the absence of any evidence, merely because the bottles contained the label 'for sale in Pondicherry only', it cannot be said that the appellant illegally imported the contraband.** **7. 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 the absence of any evidence, it cannot be said that the appellant illegally imported or transported the liquor or the appellant was in possession of the liquor while illegally importing. It is true that** ## **CRL.A.No.2767 of 2008** -6- **there was no sticker or label of the Kerala State Beverages Corporation on the bottles. 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, no evidence is available to show that the appellant imported the liquor from Pondicherry or any other State. There is also no convincing evidence to show that the appellant was found in possession of the liquor in the course of illegal import. In the said circumstances, merely because the bottles did not contain the label of the Kerala State Beverages Corporation, it** ## **CRL.A.No.2767 of 2008** -7- **cannot be said that the appellant imported the liquor from Pondicherry. For the said reason, 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. Now, the question to be considered is as to whether the appellant had committed any other offence. The appellant was found in possession of a total quantity of 5.250 litre of Indian Made Foreign Liquor at the relevant time. The permissible quantity of Indian** **Made Foreign Liquor which a person could possess during the relevant period was** **three litres as per SRO-725/2003 dated 2.8.2003. Therefore, there can be no doubt that the appellant was in possession of excess** ## **CRL.A.No.2767 of 2008** -8- **quantity of liquor than what was permissible under law. In the said circumstances, the appellant is liable to be convicted under Section 63 of the Abkari Act. Accordingly, the appellant stands convicted under Section 63 of the Abkari Act.** **9. It appears that the appellant was in custody in connection with this case from 24.1.2005 to 9.2.2005. Considering the facts and circumstances of the case, including the quantity of the contraband seized, 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.1,000/- (Rupees One thousand only) with a** ## **CRL.A.No.2767 of 2008** -9- **default clause for simple imprisonment for one month under Section 63 of the Abkari Act, to meet the ends of the justice. It is ordered accordingly.** **In the result, this appeal stands allowed in part as above.** sd/- **B. SUDHEENDRA KUMAR,** **JUDGE** STK