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2021 Supreme(Online)(KER) 47618
HIGH COURT OF KERALA
P.SOMARAJAN, J
AJI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/1209/2006
SRI.N.A.MURALEEDHARAN, SRI.E.C.BINEESH
Possession exceeding permissible limits under the Kerala Abkari Act warrants less severe penalties if documentation of ownership is lacking.
Headnote:
Abkari - Conviction for Liquor Possession - Kerala Abkari Act - Sections 55, 63 - Court interpreted the possession and classification of foreign liquor, leading to a reduction in the conviction based on permissible limits.
Fact of the Case:
The accused were convicted for possessing Indian made foreign liquor in quantities exceeding permissible limits under the Kerala Abkari Act. Evidence showed possession but lacked documentation of purchase, and their claims were challenged by previous case law.
Finding of the Court:
The court found that the quantity of liquor exceeded permissible limits, thus affirming the possession despite previous legal contentions, while modifying the sentence for a lower offence under Section 63 of the Abkari Act.
Issues: Whether the accused were wrongly convicted under Section 55 of the Kerala Abkari Act or if they were appropriately found guilty under Section 63.
Ratio Decidendi: The court concluded that while the initial conviction under Section 55 was erroneous, the prosecution did establish guilt under Section 63 due to the illegal possession of more than the permissible limit of liquor without purchase proof.
Final Decision: Conviction modified to a lesser offence under Section 63 with reduced sentence.
These two appeals are preferred by the respective accused No.1 and 2 against the conviction under Section 55 (a) and (h) of the Kerala Abkari Act and the punishment thereof to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- each. It is inter alia submitted that what is forwarded for chemical analysis is only a permissible quantity of Indian made Foreign Liquor and relied on the decision rendered inKrishnankutty v. State of Kerala (2005 (3) 568). It was subsequently overruled by a larger Bench inChandran v. State of Kerala ( 2008 (2) KLT 513 ).
Hence the said contention will not stand.
2. The accused No.1 found in possession of 49 bottles of IMFL and accused No.2 found in possession of 29 bottles of IMFL. Chemical analysis report reveals that it is having the characteristic of foreign liquor. No purchase bill or invoice produced by accused No.1 and 2. On the other hand, they were found in possession of more than the permissible quantity. It was not brought out whether it was transported from outside Kerala. As such, the finding of guilt under Section 55 (a) and (h) of the Abkari Act and the conviction thereunder will not stand. The offence would fall under Section 63 of the Abkari Act and both the accused are found guilty under the said offence and sentenced to undergo simple imprisonment for a period of two weeks and to pay a fine amount of Rs.5,000/- (Rupees five thousand) each, in default to undergo simple imprisonment for another six months. They are entitled to set off the period of detention already undergone.
Both the criminal appeals are allowed in part accordingly.
