IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 Crl.Rev.Pet.No. 283 of 2002(B) ------------------------------------------ CRL.A.NO.670/1999 OF SESSIONS COURT, KOZHIKODE, CC.NO.606/1996 OF JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: --------------------------------------------------------------------- BABU, S/O.PADMANABHAN, KOUVATTUPALORAVEETTIL, KAVILUMPARA AMSOM DESOM. BY ADV. MR.T.G.RAJENDRAN. RESPONDENTS/ RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------------------------------- 1. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NADAPURAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 283/2002-B: ORDER ON CRL.M.P. NO. 2213/2002 IN CRL.R.P.NO.283/2002-B DISMISSED 27/02/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.283 of 2002 -B - - - - - - - - - - - - - - - - - - - - - - - - - Dated the 27th day of February, 2009 O R D E R This revision petition is filed by the accused against the concurrent verdict of guilty of the offence under Section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. Convicted of the offence he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.25,000/- with default term of simple imprisonment for another two months more by the learned Magistrate, which was confirmed without modification by the learned Sessions Judge. Aggrieved thereby, he has come up in revision impeaching the correctness, legality and propriety of the conviction and sentence. 2. The gist of the prosecution case is that on 3.10.1996 at 8.50 a.m., the Excise party headed by PW1, Excise Inspector, Excise Range Office, Nadapuram, while conducting a search over a stage carriage bearing registration No. KL-13-6372, pursuant to information that import of Foreign Liquor from Pondichery were made by transport in vehicles illegally without permit, at Crl.R.P.No.283 of 2002 -B 2 Thooneri in front of Block Office, Nadapuram-Peringathur public road, found the accused, a passenger in the stage carriage, transporting 900 ml. of Indian Made Foreign Liquor without any permit, as kept in a plastic bag in his lap. Contraband detected was seized, and sample collected and sealed at the spot, preparing Ext.P1 search list and Ext.P2 mahazar. The accused arrested and taken into custody was later enlarged on bail. After completing the investigation, PW1 laid the complaint to prosecute the accused for the offence punishable under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. He pleaded not guilty when the particulars of the offence were made known. Prosecution examined PWs 1 to 4, got marked Exts.P1 to P4 and identified MOs 1 and 2 to prove the indictment levelled. The accused/revision petitioner was questioned under Section 313 of Code of Criminal Procedure. He denied the prosecution evidence contending that an unattended plastic bag containing liquor bottles found underneath the seat of the stage carriage was collected by the Excise party, and a case was Crl.R.P.No.283 of 2002 -B 3 falsely foisted against him. No defence evidence was tendered. PWs 1 and 3 were Excise officials involved in the search of the vehicle and seizure of the contraband, and also arrest of the accused. PWs 2 and 4 were the conductor and driver of the stage carriage respectively. Both of them while admitting the search and seizure of liquor bottles from the bus disowned the prosecution version denying the witnessing of the seizure of the contraband from the accused. They were treated as hostile and subjected to cross examination. The learned Magistrate accepting the version of PWs 1 and 3, the Excise officials, and relying on the documentary evidence and materials objects tendered by prosecution, found the accused guilty of the impugned offence, for which he was convicted and sentenced as indicted above. Challenge made by the accused in appeal was negatived by the learned Sessions Judge upholding the conviction and sentence imposed without any modification. 3. The learned counsel appearing for the accused assailed the conviction and sentence imposed against the Crl.R.P.No.283 of 2002 -B 4 accused on a solitary ground that there is absolute paucity of evidence on the materials to sustain the prosecution case that the accused had illegally imported foreign liquor from Mahi constituting an offence punishable under Section 55(a) of the Abkari Act. At the relevant time as under SRO No.127/1999, no permit was required to keep in possession 1.5 liters of Foreign Liquor, learned counsel for the accused/revision petitioner submits. So much so, in the absence of cogent and reliable evidence establishing that the accused had imported foreign liquor from Mahi, which was the substratum of the prosecution case, no conviction could be entered against him even if he had been found in possession of 900 ml. Indian Made Foreign Liquor while travelling as a passenger in a stage carriage. None of the passengers in the stage carriage was examined as witness nor any ticket issued by the conductor of the bus to the accused was seized and produced to hold that he had at least boarded the stage carriage from Mahi to prove the prosecution case that the accused had illegally imported foreign liquor. That being so, on Crl.R.P.No.283 of 2002 -B 5 the basis of mere possession of foreign liquor, which is not admitted, even accepting the other aspects of prosecution case in its entirety, the offence is not made out, is the submission of the learned counsel. I find that the submission made by the counsel to impeach the conviction though concurrently passed against the accused deserve to be accepted since indictment under Section 55(a) of the Abkari Act necessarily demand not mere allegation but proof that possession of foreign liquor was incidental or in connection with export, import or transit of such liquor. Mere possession of foreign liquor on an allegation that it was imported but without proof, will not constitute the offence punishable under Section 55(a) of the Abkari Act. A Devision Bench of this Court in Mohanan v. State of Kerala (2007 (1) KLT 845) has held in unequivocal terms that Section 55(a) is applicable only when persons illegally import or transport liquor or in possession of liquor while illegally importing. The penal provisions made in various other Sections of the Abkari Act were also taken note of by this Court to conclude that strict Crl.R.P.No.283 of 2002 -B 6 interpretation of Section 55(a) of the Abkari Act is demanded and the offence thereunder must be confined to cases where a person illegally imports or exports liquor, and the transport and transit and possession must relate to such illegal import or export. So, the cardinal issue involved in an offence under Section 55(a) of the Abkari Act is whether the liquor was illegally transported or exported, as the case may be, and not whether liquor without authority was transported, transited or possessed. If illegal importing or exporting, as the case may be, is not established, mere transit, transport or possession of liquor without authority coupled with an allegation that it was imported or exported, but, without proof thereof, is not sufficient to bring home the guilt of the accused for the offence under Section 55 (a) of the Abkari Act. Though an allegation has been made in the present case that pursuant to information that illegal import of foreign liquor from Pondichery was made by transporting in vehicles, the Excise party headed by PW1 checked the vehicles and, then the accused, a passenger in one of the checked Crl.R.P.No.283 of 2002 -B 7 vehicles was found with contraband seized, 900 ml. of foreign liquor as kept in a plastic bag - there is no whisper in the prosecution evidence to hold that the accused had illegally imported the contraband seized, from Mahi or Pondichery. PWs 1 and 3, the Excise officials, have not even stated in their evidence that the spot where the vehicles were checked i.e., Thooneri in front of Block Office is the border point of Mahi with the State, at least to lead an inference that there was illegal transporting of foreign liquor demanding accounting of the possession of the liquor from the accused, to sustain the prosecution case drawing the presumption available under Section 64 of the Abkari Act. There is nothing in the prosecution evidence to hold that the foreign liquor found in the possession of the accused, which is below the permitted quantity at the relevant time, was illegally imported as alleged by the prosecution. That being so, the irresistible conclusion follows that the conviction and sentence imposed against the accused cannot be sustained. Crl.R.P.No.283 of 2002 -B 8 In the result, setting aside the conviction and sentence imposed against the accused under Section 55(a) of the Abkari Act, the accused is acquitted of such offence. The revision is allowed. S.S. SATHEESACHANDRAN, JUDGE bkn/-