Falugunan vs State of Kerala

N.K. Balakrishnan, J.—The appellant was convicted by Additional Sessions Judge, Fast Track - I, Manjeri for offence punishable u/s 55(a) of the Abkari Act. He was sentenced to undergo R.I. for three years and to pay Rs. 1 lakh as fine.

The appellant is the owner of house No. IX/707 of Thannur Panchayath. The detection was on 28.05.99. On getting information that the appellant was keeping liquor in his house for sale, they proceeded to that place. A search memo was prepared before conducting the search and sent to the court. Thereafter, PW1 - the Preventive Officer, the Excise guard and other independent witnesses went inside the house and searched. In one of the rooms altogether 17 bottles of 370 ml. each were found. Out of which, 9 bottles were of brandi of one brand and other 8 bottles were of another brand of brandi. All those brandi bottles were having the sticker of Kerala State Beverages Corporation. It was not disputed that all the 17 bottles of 370Ml. each contained Indian Made Foreign Liquor. The total quantity comes to 6375 ml. The evidence regarding the search conducted by PW1 for which Ext.P3 search list was prepared was corroborated by PW2, the Excise Guard. The signatures of the accused/appellant were obtained on Ext.P3., being the owner of the house and who was present at the time of search and also for having received the copy of the search list. Besides, Ext.P1, seizure mahazar was also prepared for the seizure of the contraband liquor articles mentioned above.

The learned Additional Sessions Judge relied upon the evidence given by PW.1 which was supported by PW.2 to hold that the aforesaid 17 bottles containing brandi were seized from the house of the appellant. The fact that PW.3 and PW.4, the independent witnesses did not support the prosecution cannot in any way affect the credibility of PW1 and PW2.

PW.5, the Secretary of the Panchayath has proved Ext.P7, the ownership certificate which shows that the appellant was the owner of the house. That was not seriously assailed by the defence.

The learned counsel for the appellant would submit that though PW1 has admitted that he had perused the ration card issued to that house, he did not know how many grown-up/adult persons were staying in that house. The argument that has been advanced by the learned counsel for the appellant is that if there were two or more grown-up persons, the total quantity seized by PW.1 could be well within the permitted quantity. But the learned Public Prosecutor would submit that when the seizure was from the house of A1 and it was effected in the presence of A1 if he wanted to contend that he was not the only person who had kept or possessed the same, being a fact which was within his special knowledge, he could have proved it by producing the ration card or other document. But the defence failed to do so. Therefore, according to the learned Public Prosecutor it has to be found that all the 17 bottles were kept and possessed by the appellant himself and since the total quantity exceeds the permitted quantity, the findings entered by the court below that he is guilty of offence punishable u/s 55(a) of the Abkari Act is perfectly correct.

The learned counsel for the appellant would submit that the case of the prosecution is that accused used to sell the liquor and it was for that purpose all these bottles were stocked by the accused. But the prosecution could not adduce any evidence to prove that the accused/appellant was in the habit of selling liquor/brandi from his house nor was any measuring bottle or money seized from the possession of the appellant to prove that the accused was in the habit of or engaged in the sale of brandi. Therefore, according to the defence if at all the possession of IMFL of the aforesaid quantity admittedly purchased from Kerala State Beverages Corporation can only amount to violation of Rules, wherefore the offence would fall only u/s 63 of Abkari Act. It is submitted by the learned Public Prosecutor that since the appellant has not adduced any evidence to show that there were other grown-up male members in the family and since it was not possible to keep all those bottles at a time, the argument advanced by the defence cannot be sustained. True, there is force in that argument. However, since the prosecution could not produce any other material to show that those liquor bottles were actually brought to that house intended to be sold it can only be held that the possession was only in violation of the Rules relating to possession of IMFL. Hence I find that the offence proved against the accused is only u/s 63. As such the conviction and sentence passed against the accused for offence u/s 55(a) of Abkari Act are set aside instead he is convicted for offence punishable u/s 63 of the Act.

In the result this Appeal is allowed in part. The conviction and sentence passed against the appellant for offence punishable u/s 55(a) of Abkari Act are set aside. The accused is convicted for the offence punishable u/s 63 of Abkari Act and is sentenced to undergo imprisonment till the rising of the court and to pay Rs. 5,000/- (Rupees Five thousand only) as fine and in default to undergo S.I. for one month. The appellant will surrender before the learned Additional Sessions Judge, Manjeri on 22/02/2011 to undergo imprisonment till the rising of the court and to pay the fine amount, if not already paid.