BIJU vs STATE OF KERALA

The appellants, in these two appeals, challenge

the conviction and sentence against them under

Section 55 (a) and (i) of the Kerala Abkari Act (''the Act"

for short) in S.C No.540 of 2010 of the Court of Session,

Kollam. These two appellants and another person by

name Shahan (A3) faced prosecution before the trial

court on the allegation that at about 4 p.m on

28.12.2009, they were found transporting a huge

quantity of Indian Made Foreign Liquor in the Jeep

No.KL7-P2329 driven by the 1st accused (appellant in

Crl.A No.1519/2012). The offence was detected by the

Sub Inspector of Police, Thenmala. On suspicion, the

Sub Inspector intercepted the jeep. The jeep was

immediately stopped, and just then, a passenger seen

on the front seat of the vehicle ran off and escaped.

When the Sub Inspector inspected the vehicle, he found

a passenger on the rear seat of the jeep holding a big

shopper containing something. Another big shopper was

seen on the front seat also. When he opened and

examined the two big shoppers, he found liquor bottles

therein. The big shopper on the front seat was found

containing 46 liquor bottles of 375 ml capacity, and the

big shopper in the possession of the passenger on the

rear seat was found containing 12 bottles of 500ml

capacity; all bottles containing full quantity of Indian

made Foreign Liquor, and all the bottles bearing the seal

of the Kerala State Beverages Corporation. The driver of

the jeep and also the passenger on the rear seat were

arrested by the Sub Inspector, and the liquor bottles

were seized as per mahazar. On the basis of the seizure,

the Sub Inspector registered the crime against three

persons under Section 55 (a) and (i) of the Act. After

investigation, the Police submitted final report in court

against three persons. The first accused is the driver of

the vehicle, the 2nd accused is the passenger seen on the

rear seat, and the 3rd accused is the passenger on the

front seat, who ran off and escaped.

The three accused entered appearance before

the learned Additional Sessions Judge (Adhoc) I, Kollam

and pleaded not guilty to the charge framed against

them under Section 55 (i) of the Act. The prosecution

examined five witnesses, and proved Exts.P1 to P16

documents. Of the five witnesses, PW1 and 2 are the

independent witnesses examined by the prosecutor,

PW3 is the Head Constable who had accompanied the

Sub Inspector, PW4 is the Sub Inspector who detected

the offence, registered the crime and investigated the

case, and PW5 is the Sub Inspector who submitted final

report .

When the case came up for examination of the

accused under section 313 Cr.P.C, the 3rd accused

remained absent consistently, and at that stage, the case

against him was split up and the case proceeded against

the accused Nos.1 and 2. When examined under Section

313 Cr.P.C, the accused Nos.1 and 2 denied the

incriminating circumstances. They did not adduce any

evidence in defence.

On an appreciation of the evidence, the trial

court found the accused Nos.1 and 2 guilty. On

conviction, they were sentenced to undergo simple

imprisonment for two years each and to pay a fine of

Rs.1 lakh each under Section 55 (a) and (i) of the Act by

judgment dated 7.12.2012. Aggrieved by the judgment

of conviction, the accused Nos.1 and 2 have come up in

appeal. Crl.A No.1519/2012 is the appeal brought by the

1st accused and Crl.A No.13/2013 is the appeal brought

by the 2nd accused.

When the two appeals came up for hearing,

the learned counsel submitted that there is absolutely no

evidence to show that the quantity of liquor seized by

the Sub Inspector was in fact possessed, or transported

or allowed to be transported in the vehicle, by the 1st

accused. The learned counsel for the second accused

submitted that the 2nd accused in fact happened to hold a

big shopper belonging to the other passenger who ran off

and escaped, and that the 2nd accused was not aware of

the contents of the big shopper when he just helped the

other passenger. The learned counsel also submitted in

the alternative, that if at all a conviction is possible

against the 2nd accused, it could be only under Section

63 of the Act.

On hearing both sides, and on a perusal of the

materials I find that there is no clear and satisfactory

evidence in this case against the 1st accused who was the

driver of the vehicle. The evidence of the Detecting

Officer and also the Head Constable will show that just

when the 1st accused stopped the vehicle, the 3rd

accused who was sitting on the front seat ran off and

escaped. The big shopper containing 46 bottles of liquor

was seen on the front seat of the vehicle. The other big

shopper containing 12 bottles of 500 ml each was seen

in the hands of the 2nd accused. As regards detection,

the evidence of PW3 and PW4 stands not discredited in

any manner.

The Sub Inspector and the Head Constable are

definite and consistent in their evidence regarding the

seizure of 58 bottles of Indian made Foreign Liquor. A

big shopper containing 12 bottles was seen in the hands

of the 2nd accused. Seizure of this big shopper from his

possession is well proved. In such a situation, it is for him

to explain, or account for, the possession of that

quantity of 6 litres of IMFL. There is nothing to show that

the 2nd accused just happened to help the other accused

who ran off and escaped. In the absence of any such

evidence rebutting the presumption against him, it will

have to be found that the said quantity of six litres of

Indian made Foreign Liquor was possessed by him with

the knowledge that it is in violation of the provisions of

the law under the Abkari Act. Anyway, a conviction is

not possible against him under Section 55 (a) of the Act,

because mere possession or transportation of liquor in

excess of the quantity permitted under the law is

punishable only under Section 63 of the Act. I find that in

the present circumstances, the conviction possible

against the 2nd accused is only under Section 63 of the

Act. Seizure of 6 litres of liquor from his possession

stands well proved. The prosecution records will show

that it was the liquor purchased from the outlet of the

Kerala State Beverages Corporation. If so, the accused

cannot be punished and convicted under Section 55 (a)

of the Act in view of the decision of this Court in

Mohanan v. State of Kerala (DB) [2007 (1) KLT 845].

Now the question is whether the first accused

can be found guilty in this case. Even according to the

prosecution, the passenger found on the front seat ran

off and escaped on seeing the Police party. In such a

situation, the question is whether the driver of the

vehicle had any knowledge that the big shopper

possessed or carried by the passenger on the front seat

of the vehicle contained Indian made Foreign Liquor. The

mahazar, and also the evidence of the Sub Inspector will

show that the big shopper was in a tied up condition.

This means that the driver could not have in fact seen

what the said big shopper contained. In such a situation,

the driver cannot be punished under Section 61 of the

Act also. Such a conviction is possible only if there is

evidence to show that any passenger was allowed by the

driver of the vehicle to carry liquor in his vehicle. I find

that the first accused is entitled for the benefit of doubt

as to whether the big shopper containing 46 bottles

was in fact transported by him in his vehicle, or whether

it was carried by the passenger (A3), who ran off and

escaped on seeing the police party. This is in fact a

serious doubt, the benefit of which must necessarily go

to the 1st accused. I find that the first accused is entitled

for acquittal on the said ground, and that the 2nd

accused is liable for conviction under Section 63 of the

Act. The maximum punishment possible thereunder is

only a fine sentence of 5000/-.

In the result, Crl.A No.1519/2012 is allowed in toto,

and Crl.A No.13/2013 is allowed in part. The appellant in

Crl.A No.1519/2012 (A1) is found not guilty of the offence

under Section 55 (a) & (i) of the Act and he is acquitted

of the offence in appeal under Section 386 (b) (i) Cr.P.C .

The bail bond, if any, executed by him will stand

discharged. The finding of guilty made by the trial court

against the appellant in Crl A. 13/2013 (A2) is confirmed

with the modification and alteration in appeal, that a

conviction is possible only under Section 63 of the Act.

Accordingly, the conviction and sentence against the 1st

accused in SC 540 of 2010 of the court below under

Section 55 (a) & (i) of the Act will stand set aside, and the

2nd accused is convicted under Section 63 of the Act in

appeal. He is sentenced to pay a fine of 5000/- or in

default to undergo simple imprisonment for three

months. He will have to surrender before the trial court

within two weeks and remit the amount of fine or

undergo the default sentence. The amount, if any,

deposited by the 1st accused as a condition for

suspension of sentence, will be released to him. If the 2nd

accused has made any such deposit in excess of

5000/-, the amount of fine can be set off, and the balance

can be released to him.