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2025 Supreme(Online)(KER) 15100
HIGH COURT OF KERALA
C.S. Sudha, J
LIBIN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 61/2014
SRI.T.R.HARIKUMAR, SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
Possession of liquor does not equate to proof of import; prosecution must establish illegal importation to convict under Section 55(a)(i) of the Kerala Abkari Act.
Headnote:(A) Kerala Abkari Act, 1 of 1077 - Sections 55(a)(i) and 63 - Conviction for transporting Indian Made Foreign Liquor (IMFL) - Accused were found with 171 litres of IMFL without necessary permits - Court held that mere possession does not equate to proof of import - Conviction modified from Section 55(a)(i) to Section 63 for possessing IMFL in excess of prescribed limits. (Paras 1, 8, 16, 18)
(B) Legal Principles - The prosecution must prove that the accused imported liquor into the State to establish an offence under Section 55(a)(i) - Mere possession does not suffice for conviction under this section. (Paras 12, 15)
(C) Findings of Court - The trial court's conviction under Section 55(a)(i) was not sustainable due to lack of evidence proving import; modified to Section 63 for possession in excess of limits. (Paras 16, 18)
(D)
Issues: Whether the conviction under Section 55(a)(i) was sustainable based on the evidence presented. (Para 8) (E)
Ratio Decidendi: The court emphasized that possession alone does not imply importation, and the prosecution must establish a direct link to the illegal import of liquor. (Paras 12, 15) (F)
Result: Appeal allowed in part; conviction modified to Section 63 with a fine of ₹5,000/- each. (Para 18)
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused 1 and 2 in S.C.No.201 of 2012 on the file of the Court of Session, Ernakualm challenge the conviction entered and sentence passed against them for the offence punishable under Section 55 (a) (i) of the Kerala Abkari Act , 1 of 1077 (the Act).
2. The prosecution case is that on 19/09/2010 at about 10:30 a.m. the accused two in number were found transporting 171 litres of Indian Made Foreign Liquor (IMFL) in contravention of the provisions of the Act in a car bearing registration no.KL-05/Y 2225 through the Kothamangalam-Muvattupuzha National Highway near Ikkara colony junction, Mathirappally. Hence, the accused persons as per the final report are alleged to have committed the offences punishable under Sections 55 (a)(i) and 58 of the Act.
3. Crime no.65/2010, Excise Range Office, Kothamangalam, that is, Ext.P2 crime and occurrence report was registered by PW1, Excise Range Inspector, who is the Detecting Officer. Investigation was conducted by PW8, Excise Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, who on completion of the investigation submitted the final report before the jurisdictional magistrate alleging the commission of the aforesaid offences by the accused persons.
4. On appearance of the accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Ernakulam. The case was taken on file as S.C.No.201/2012 and thereafter made over to the Additional Sessions Judge, Muvattupuzha, for trial and disposal. When the accused persons appeared before the trial court, a charge under Section 55 (a) (i) of the Act was framed, read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW8 were examined, Exts.P1 to P18 and M.O.1 to M.O.5 were marked in support of the case. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. DW1 and DW2 were examined on behalf of the accused persons.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused persons guilty of the offence punishable under Section 55 (a)(i) of the Act and hence sentenced them to rigorous imprisonment for a period of two years each and to a fine of ₹1,00,000/- each and in default to rigorous imprisonment for a period of six months each. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused persons have come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused persons/appellants by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel appearing for the accused persons/appellants that the evidence on record does not make out a case under Section 55 (a)(i) of the Act. At best the offence made out is only under Section 63 of the Act as held in Narayanan Nair v. State of Kerala, 2011 (3) KHC 472 ;Tippu Mohammed v. State of Kerala, 2014 KHC 852 and in two unreported judgments of this Court, dated 03/07/2020 and 06/11/2020 inCrl.A.No. 791/2011 andCrl.A.No.2431/2007 (R.Rajesh v. State and Jayasenan v. Circle Inspector, Excise Special Squad, Malappuram).
11. The prosecution case as per the final report/charge sheet reads thus:- the accused persons two in number with the intention of making unlawful
