IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 1ST DAY OF DECEMBER 2011/10TH AGRAHAYANA 1933 CRL.A.No. 1586 of 2003 ( ) -------------------------- SC.111/2000 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT(S)/ACCUSED: -------------------- BABURAJ.K. KUNNUMMAL HOUSE, P.O.KAVIL, (VIA) NADUVANNUR, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENT: ------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ds P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - Crl.A. NO.1586 OF 2003 - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2011 J U D G M E N T The appellant was convicted by the Additional Sessions Judge, Kozhikode in S.C. No. 111/2000 for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for 1 ½ years and a fine of ` 1,00,000/- (Rupees One lakh only) with a default sentence of simple imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. I have heard Adv. Sri. Kunhikrishnan, the learned counsel for the appellant and the learned Government Pleader, Sri. N. Noushad Thottathil. Perused the judgment and evidence on record. 3. The allegation against the appellant is that at 2.30 pm on 28/08/1998, while PW1, the Inspector attached to Balussery Excise Range along with PW2 Excise guard moving Crl.A. No.1586/2003 -2- on patrol duty, they found the appellant coming across with a plastic bag in his arm pit. On seeing the excise party, the appellant got bewildered. PW1 suspected that the appellant was carrying some contraband. He was intercepted and searched. On examination it was found that inside the plastic bag, there were two bottles of foreign liquor, one containing the label “Royal Prince Whisky” and another containing the label “Golden Star Brandy”. 4. According to the prosecution, there was no seal of the State Beverages Corporation. On the other hand, the appellant confessed that it was purchased from Mahe. Since the appellant had no licence to import liquor, the liquor bottles along with plastic bag were seized for which Ext. P1 Seizure Mahazar, wherein, PW3 is an attester was prepared. The appellant was arrested for which Ext. P2, arrest memo was prepared. Samples were taken in two 180 ml bottles. When samples were examined by the Chemical Examiner, it was revealed that the samples contained 29.36 and 37.27 % Crl.A. No.1586/2003 -3- by volume of Ethyl Alcohol, vide Ext. P7 report. PW4 conducted investigation and filed charge sheet alleging the above offence. 5. The appellant pleaded not guilty to the charge when framed and read over. Hence he was sent for trial. On the side of the prosecution, Pws 1 to 4 were examined. Exts. P1 to P7 and M.O. 1 series liquor bottles with remaining quantity of liquor were marked. The appellant took a defence of total denial. No defence evidence was let in. The learned Additional Sessions Judge on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. 6. In support of the prosecution there is the testimony of PWs 1 and 2. PW3 did not support the prosecution. The trial Court on appraisal of the evidence of PWs 1 and 2 came to a conclusion that their evidence is credit worthy. Going by the evidence, I also find no reason to disbelieve them regarding the seizure. The total quantity Crl.A. No.1586/2003 -4- seized is only 1.5 litres. Whereas, as per Rule 11, with effect from 05/03/1998, the quantity permitted to be possessed by a person is 4.5 litres. Therefore quantity of liquor seized is within the permissible limit. But according to the prosecution, liquor was imported from Mahe and therefore the appellant has committed offence under Section 55(a) of the Abkari Act. There is no evidence in support of the import. Evidence of Pws1 and 2 would show that they had not made any investigation as to how the appellant got the contraband liquid. No evidence was adduced to show that the appellant really imported or transported the same to the state from outside the state. 7. According to the learned Government Pleader, since there was no label of the Kerala State Beverages Corporation, it is to be presumed that it is imported from outside the state. I am afraid to come to such a conclusion because there is no evidence on record to conclude that in the state there is any ban of sale of liquor without label. Crl.A. No.1586/2003 -5- Even if there was a label that is removable. No law mandates that the label should not be removed. In this juncture, it is pertinent to note that neither PW1 nor PW2 nor PW4 had made any investigation as to whether it was in fact not sold from any of the licensed outlets in the state of Kerala. Prosecution has no case that it was illicitly manufactured by the appellant or that it was purchased from an illicit manufacturer. Therefore, it is to be presumed that the appellant got it from a licensed manufacturer. So long as the prosecution has not adduced any evidence that it was manufactured and brought from outside state, it is to be found against the prosecution. It appears that the trial court found against the appellant on the so called confession. But so long as no corroborating evidence, no conviction would lie on the basis of confession. In the above circumstances, I find that there is no evidence to come to a conclusion that the liquor seized from the appellant was manufactured outside the state or imported to the state. Therefore I find Crl.A. No.1586/2003 -6- that the conviction and sentence under challenge are not sustainable. In the result, the appeal is allowed while setting aside the conviction and sentence under challenge, appellant would stand acquitted. Fine amount, if any remitted by the appellant, shall be refunded. Sd/- P.S.GOPINATHAN, JUDGE. ds //True copy// P.A. to Judge