The conviction under the Abkari Act necessitates proof of intent to sell illicitly, which was not established in this case.

JUDGMENT

Appellant is the accused in S.C. No.243 of 2014 on the files of the Additional Sessions Court-II, Kalpetta. By judgment dated 31.07.2015, he has been found guilty for the offence under Section 55 (i) of the Abkari Act , 1077, and has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for three months. Aggrieved by the aforesaid conviction and sentence, this appeal has been preferred.

2. Prosecution alleged that on 16.04.2014, at about03.10 p.m., the accused was found in possession of 5 litres of Indian Made Foreign Liquor (IMFL) in front of a bus waiting shed and thereby committed the offences alleged.

3. In order to prove the prosecution case, they examined PW1 to PW6 and marked Exhibit-P1 to Exhibit-P8, apart from MO1 and MO2. After analysing the evidence adduced in the case, the learned Sessions Judge found the accused guilty for the offences alleged and sentenced him as mentioned earlier.

4. I have heard Sri. P. Venu Gopal, the learned counsel for the appellant as well as Smt. Sreeja V., the learned Public Prosecutor.

5. Prosecution examined PW2 and PW5 mainly to prove the detection and seizure of the contraband. However, on a perusal of the deposition of those witnesses, it is noticed that both of them had not seen the accused indulging in the sale of liquor to any person. As an answer to a specific query regarding whether they had seen any person purchasing liquor from the accused, PW2 and PW5 answered in the negative. Thus there is no ocular evidence to prove that the accused was indulging in the sale of any contraband.

6. The only material to connect the appellant with the crime was the seizure of Rs.1040/- from his pocket. However, the mere seizure of currency notes, that too, a nominal sum of Rs.1,040/- is not sufficient to arrive at a conclusion that the accused is indulging in the sale of IMFL. Even the other witnesses examined on behalf of the prosecution had not deposed anything regarding any alleged sale of IMFL by the accused. In this context, it is necessary to bear in mind that even according to the prosecution witnesses, the accused had purchased the IMFL from a Beverages Corporation outlet. Therefore, the liquor allegedly seized from the possession of the appellant cannot be said to be illicit as well. Though the learned Sessions Judge came to the conclusion that the accused was arrested red-handed while engaging in sale of IMFL, no evidence was adduced by the prosecution to justify such a conclusion, and therefore, the said finding is incorrect.

7. In this context, reference to the decision in Sidhan @ Sidharthan v. State of Kerla [ 2014 (2) KHC 644 ] is also relevant. The following observations in the said decision are relevant.

“I am of the view that the word 'sells' in S.55(i) of the Act is used by the Legislature with a definite purpose. What is sought to be prevented by the provision is illicit sale of liquor. It is axiomatic that the Legislature may not use any word or expression without ascribing a meaning to it or without intending any result or effect unless the subject or context clearly indicate otherwise. Here, it is evident that the Legislature wanted to make unauthorised sale of liquor an offence. The expression "sells" in S.55(i) of the Act can only be viewed as a sale in presenti and not a past sale. In other words, what is to be detected for making out an offence is actual sale of liquor or all preparedness for a sale of liquor. It is futile to contend that the offence is revealed only when the detecting officer saw the accused pouring liquor from a bottle to a tumbler and another person receivin