IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 402 of 2001() ----------------------------- CRA.300/1998 of ADDL.SESSIONS COURT, KOZHIKODE CC.235/1996 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... REVN. PETITIONER(S): --------------------- THANNIYULLATHIL RAVENDRAN, S/O.CHATHU, AGED 34 YEARS, MARUTHONKARA AMSOM DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- 1. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NADAPURAM. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/ 08/ 2009, THE COURT ON 04/08/2009 PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.R.P. No. 402 of 2001 ----------------------------------------------- Dated this the 4th day of August, 2009 . ORDER The revision petitioner challenges the conviction and sentence passed against him under Section 55(a) of the Abkari Act to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo simple imprisonment for 2 months by the Judicial Magistrate of First Class, which is confirmed in appeal by the First Addl. Sessions Judge. 2. According to the prosecution, on 5.5.1996 at about 3.45 p.m., accused was found transporting in a bus 10 bottles of Indian made foreign liquor, each containing 180 ml. which did not contain the label of Kerala State Beverages Corporation. It is alleged that the Excise party got information that foreign liquor was being transported from Palloor, which is a place situated in “Pondicherry State” and the crime was detected on the Peringathur -Nadapuram road at Thooneri Amsom in front of the Block office. The bus was plying from Thalassery to [Crl.R.P.402/2001] 2 Kallunira. 3. On a search conducted in the bus, it was found that the accused was in possession of a paper packet which contained the contraband articles. He had no explanation for the possession and he acted in contravention of the provisions of the Abkari Act and Rule 9 of the Foreign liquor Rules and hence he was arrested from the spot and articles were seized under a mahazar. After investigation, charge was laid before the Judicial Magistrate of First Class. (The total quantity of liquor seized was 1.800 litres). The mahazar prepared in this case is Ext.P2 and the search list is Ext.P1. 4. To prove the prosecution case, prosecution examined PWs.1 to 3 and marked Exts.P1 P4 and MO.1 series. PW1 is the Excise Inspector, who is the detecting officer, who gave evidence consistent with the prosecution case that 10 bottels of Indian made foreign liquor containing 180 ml. each, were seized from the possession of the accused while he was transporting liquor from Palloor in a bus, which was plying from Thalassery to Kallunira. The crime was detected in front of [Crl.R.P.402/2001] 3 Thooneri Block office on the Peringathoor – Nadapuram road. PWs. 2 and 3 are the driver and conductor of the bus respectively. They said that foreign liquor was seized from the possession of a passenger and mahazar was signed by them but they did not implicate the accused with the crime. They were declared as hostile. 5. Learned counsel for petitioner submitted that the evidence will not disclose that there was import of Indian made foreign liquor. There is only the evidence of PW1 which is uncorroborated by independent evidence. Both PW2 and PW3 turned hostile to the prosecution. Hence, petitioner ought not to have been convicted for offence under Section 55(a) of the Act, it is contended. Even if the entire prosecution case is accepted what is revealed is that accused was found in possession of 1.800 litres of Indian made foreign liquor within the Kerala State, but it is not an offence as per the entire permissible quantity of Indian made foreign liquor at the relevant date was upto 4.5 litres. So, no offence was committed by the petitioner, it is submitted. [Crl.R.P.402/2001] 4 6. Learned Public Prosecutor submitted that there is evidence to show that in none of the bottles which were seized from the possession of the accused, label of Kerala Beverages Corporation was pasted and hence it is a clear case of import of foreign liquor in violation of Rule 9 of Foreign Liquor Rules. Learned counsel for petitioner argued that nowhere in the Act and Rules it is stated that foreign liquor shall contain the label of Kerala Beverges Corporation. All what is required is compliance of Rule 26 which only says that there must be security label containing signature of Excise Commissioner and State emblem. But it is not necessary that it must contain the label of Beverages Corporation. 7. Learned Public Prosecutor submitted that on a reading of the various provisions it is clear that there must be label of the proprietor on the foreign liquor which is intended for sale in Kerala State. In the light of the submissions made, I have gone through the records. The accused is charge-sheeted for offence under Section 55(a) for importing Indian made foreign liquor from Pondicherry State to Kerala State. But as per the [Crl.R.P.402/2001] 5 evidence of PW1, he only got information that foreign liquor was being transported from Palloor and he detected the crime on the Peringathur-Nadapuram road in front of Thoonery Block office. 8. A reading of the evidence of PW1 and the portion of the evidence of PWs 2 and 3 will show that 1.800 litres of Indian made foreign liquor was found in possession of the accused who was a passenger in the bus plying from Thalassery to Kallunira. PW1 stated that the accused acted in contravention of the provisions of the Act. He did not say from which place the article was brought. He does not appear to have conducted any enquiry or investigation from which place or to which place the contraband article was brought. He has not even a case that accused told him that the contraband articles were brought by him from a place which does not lie within the Kerala State. 9. PW1 has not made enquiry with the bus conductor or the bus driver from which place petitioner had got into the bus. If there was evidence to show that he boarded the bus from a [Crl.R.P.402/2001] 6 place which is not lying within the territory of Kerala State, it could have been inferred that he was bringing the article from the said place. There is no evidence to prove such fact. No enquiry is seen made by investigating officer from where the accused obtained possession of foreign liquor. An offence under Section 55(a) relating to import can be established only if there is evidence that the accused brought foreign liquor from a place which lies outside the Kerala State into the Kerala State. 10. Both the courts below have not paid any attention to consider whether there is evidence to show that the article was brought from a place lying outside Kerala State to the Kerala State which alone will constitute offence of import of foreign liquor as stated under Section 55(a). No attempt is seen made by PW1 to seize the ticket from the possession of petitioner at least to show that he was boarded the bus from a place outside the Kerala State. 11. Taking all the above facts into consideration, I find that there is no evidence to show accused “imported” the [Crl.R.P.402/2001] 7 contraband article. The possession of permissible quantity of Indian made foreign liquor is not an offence under Section 55 (a). Hence, the conviction and sentence passed against petitioner are unsustainable. In the result, the following order is passed: 1) The conviction and sentence passed against petitioner under Section 55(a) of Abkari Act are set aside. 2) The petitioner is found not guilty and he is acquitted of offence under Section 55(a) of Abkari Act. 3) The petitioner is set at liberty forthwith. This petition is allowed. K.HEMA, JUDGE. Krs. [Crl.R.P.402/2001] 8 K.HEMA, J. ----------------------------------------------- Crl.R.P. No. 402 of 2001 ----------------------------------------------- Dated this the day of August, 2011 . ORDER