Karimpan vs State of Kerala

A. Hariprasad, J.—Appellant is aggrieved by the conviction and sentence by the learned Additional Sessions Judge for an offence under Section 58 of the Abkari Act (in short ''the Act''). Prosecution case, in short, is that on 30-06-1997 at 12.00 noon, the appellant was found carrying a can containing about 5 litres of illicit arrack and thereby he committed the offence punishable under Section 58 of the Act.

Heard Sri. V.M. Syam Kumar, the learned counsel for the appellant and Sri. K.K. Rajeev, the learned Public Prosecutor.

At the time of trial, PW''s 1 to 5 were examined and the documents Exts.P1 to P9 were relied on by the prosecution. MO1 was the can allegedly recovered from the possession of the appellant. There was no defence evidence.

Before going into the legal aspect, I shall refer to the evidence in this case. Ext.P1 is the seizure mahazar. It was proved by PW1. PW1 was the Preventive Officer in the Excise Range, Pazhayannur. According to his testimony, on 30-06-1997 at about 12.00 noon, while he, along with his party was engaged in patrol duty, found the accused carrying a can. He was trying to hide the same on seeing the Excise Officers. On feeling suspicion, he was questioned. On examination of the can, it was seen that it contained illicit arrack of about 5 litres. The accused was arrested for committing an offence under the Act. Liquor was poured into a bottle having a volume of 180 ml. as sample and it was properly sealed. Thereafter, Ext.P1 was prepared. The accused and the contraband article were taken to the Excise Office and then to the court. Ext.P2 is the arrest memo and Ext.P3 is the body search mahazar. PW1 was subjected to cross examination. His version that the accused was found carrying liquor on the alleged date remains credible in spite of cross examination.

PW2 is an independent witness, who turned hostile to the prosecution. PW3 is an Excise Guard, who accompanied PW1 at the time of search and seizure. He also supported the prosecution case. PW4 is the Village Officer, who prepared Ext.P4 plan. PW5 is the Excise Range Inspector, Pazhayannur. He conducted investigation. Ext.P5 occurrence report was prepared by him. Ext.P7 property list and Ext.P8 scene mahazar were produced by this witness before the court. It is seen that Ext.P7 property list was produced before the court on the date of detection itself.

The prosecution evidence clearly show that the accused was found carrying a can containing illicit liquor on the alleged day.

Ext.P1 seizure mahazar also shows that the accused was carrying illicit liquor. There is no mention in Ext.P1 that he was carrying illicit liquor with the knowledge that it was unlawfully transported. None of the prosecution witnesses has stated that the accused carried illicit arrack with the knowledge that it was unlawfully transported. This Court as per decision in Josekutty Vs. State of Kerala, considered the scope of Section 58. It has been found that to attract a charge under Section 58 of the Act, the accused must be in possession of any quantity of liquor or any intoxicating drug without any lawful authority, knowing the same to have been unlawfully imported, transported or manufactured or knowing that tax, duty or rental payable under the Act has not been paid. It is further held that mere possession of any quantity of liquor by itself is not sufficient to convict a person for the offence under Section 58 of the Act. The possession must be firstly without lawful authority and secondly with the knowledge that it has been either unlawfully imported or unlawfully transported or unlawfully manufactured. Therefore, the essential ingredients for the offence are (1) possession of the illicit arrack (2) with the knowledge that it is unlawfully transported etc.

There is no allegation either in Ext.P1 mahazar or in the testimony of material prosecution witnesses that the accused was aware that the liquor possessed by him was unlawfully imported, transported or manufactured. Learned Public Prosecutor submitted that the conduct of the accused in hiding the liquor shows his culpable state of mind. It is true that it may be a reflection of a guilty mind of the accused. But basic ingredients, which will have to be alleged by the prosecution to establish the offence, cannot be inferred merely from the conduct of the accused. Presumption under Section 64 of the Act will come into play only on establishing the basic facts required to attract an offence. Therefore, I find that the conviction and sentence imposed on the appellant under Section 58 of the Act is legally unsustainable. Hence, I set them aside. However, it has been established that the accused was carrying a liquor containing 4.98% by volume of ethyl alcohol. Learned counsel for the appellant submitted that the percentage of ethyl alcohol is much less than in many medicinal preparations. But that will not absolve the accused of his criminal liability, if one goes by the definition of liquor under Section 2(10) of the Act. As per the definition "liquor" includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. Hence the percentage of alcohol found in the liquor is of no relevance as per the definition of the liquor under the Act. The appellant has no case that he was authorized to carry such a liquor at the material time. It is true that there is no charge under Section 8 of the Act and he was not tried for the said offence. Considering the fact that he was in possession of liquor without any lawful authority, I find that he has committed an offence punishable under Section 63 of the Act.

In the result, the appeal is partly allowed. Conviction of the appellant under Section 58 of the Abkari Act is set aside. He is convicted under Section 63 of the Abkari Act. He shall pay a fine of Rs.5,000/- (Rupees five thousand only), failing which, he shall undergo default sentence of simple imprisonment for three months.

All pending interlocutory applications will stand dismissed.