Narayanan Nair vs State of Kerala

K. Hema, J.—On a finding that accused was in "possession" of, or "transporting" Indian made foreign liquor (''IMFL'', for short), can he be convicted for offence u/s 55(a) of the Abkari Act (''the Act'', for short) read with Rule 9 of the Foreign Liquor Rules (''the Rules'', for short)? Under what circumstances, presumption u/s 64 of the act can be drawn? The above important questions arise for consideration in this revision.

According to prosecution, on 9.7.1996 at about 12.30 p.m., while Excise officials were on duty at a place called "Azhiyoor", revision petitioner was found traveling in a bus plying on the route, Thalassery- Vadakara via Mahe. He had with him, 10 bottles of''IMFL'', each containing 375 ml of liquor (3. 750 litres). He was arrested and contraband articles were seized, under a mahazar,Ex.P2. A case was registered against him and after investigation, areport was filed before Magistrate Court, alleging offence u/s 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules.

PWs.1 to PW3 were examined and Exts.P1 to Ex P3 and MO1 series were marked on its side. Accused contended at the time of questioning u/s 313 of Cr.P.C., that this is a false case but, did not adduce any evidence. On conclusion of trial, Magistrate court convicted revision petitioner u/s 55(a) of the Act read with Rule 9 of the Rules to undergo simple imprisonment for 6 months and also to pay fine of Rs.25000/- and in default, to undergo simple imprisonment for 6 months. In appeal, Sessions Court confirmed the conviction and sentence. Hence, this revision.

Sri. Kunhikrishnan, learned counsel appearing for revision petitioner argued that according to prosecution, revision petitioner committed offence u/s 55(a), by acting in violation of Rule 9 of the Rules. Rule 9 of the Rules prohibits "import" of IMFL but, there is absolutely no evidence to prove that accused imported of IMFL into Kerala. Hence, conviction of petitioner u/s 55(a) read with Rule 9 of the Rules is illegal, it is argued.

Sri. K.S. Sivakumar,learned Public Prosecutor argued that it is not correct to say that there is no evidence to prove that IMFL was "imported" into the State. On the bottles of IMFL seized in this case, stickers of the Kerala State Beverages Corporation (''KSBC'',for short) were absent. Foreign liquor licence is issued in Kerala only to KSBC and bottles of IMFL which are to be sold in Kerala shall have stickers on them, referring to batch number etc., assigned by KSBC, it is submitted. But, stickers were absent on the bottles seized from accused, as revealed from the evidence of PW2 and also from Ext.P2 mahazar. This itself indicates that accused has imported IMFL into the State, it is strongly argued.

Further, petitioner was found in a bus plying through Mahe, which is a place lying outside Kerala, and it can be presumed that he imported IMFL into Kerala. It was also argued that as per evidence, petitioner was having 10 bottles of IMFL in his possession and he had no satisfactory explanation for possession. Hence, presumption u/s 64 of the Act can be drawn against accused to hold that he is guilty of offence u/s 55(a) of the Act., it is argued.

On hearing both sides and on going through the records and also impugned judgment, at the very outset, I notice something quite interesting in this case. "Import" is the overt act which is to be proved to constitute the alleged offence in this case. But, trial court convicted petitioner, on the finding that he was in "possession" of IMFL and appellate court confirmed conviction, on a finding that petitioner "transported" Indian made foreign liquor. Prosecution itself has no case that petitioner was either in illegal "possession" of IMFL or was "transporting" the same.

The courts below did not even take care to find out whether accused "imported" IMFL or not, before convicting him u/s 55(a) of the Act read with Rule 9 of the Rules. It seems that courts below proceeded as though, the expressions such as "possess", "transport" and "import" used in the Act or Rules does not carry any difference. This is wrong. The words, "possess", "transport" and "import" used under the Act refer to distinct and different acts. They do not mean the same thing. The facts to be proved to establish those acts are also different.

The allegation made against revision petitioner is that he committed offence u/s 55(a) of the Act, by acting in violation of Rule 9 of the Rules. Rule 9 of the Rules lays down that no foreign liquor shall be imported into the State except under a permit etc. A reading of Section 55(a) of the Act shows that whoever "imports" liquor in contravention of the Act or rules will be liable for punishment u/s 55(a). Hence, "import" is the overt act which is to be proved by prosecution to establish offence u/s 55(a) of the Act read with Rule 9 of the Foreign Liquor Rules.

"Import", u/s 3(16) of the Act means, to bring into the State. "State" means, the State of Kerala, as per Section 3(24) of the Act. It is needless to say that a person can "bring" an article into the State of Kerala, only from a place which lies outside its territory. To prove offence u/s 55(a) of the Act read with Rule 9 of the Rules, prosecution must prove that accused was in possession of IMFL. It must be proved that accused "brought" IMFL into the State of Kerala, from some place which lies outside the State.

The act of "bringing" is different from being in "possession" A person who is found to be in "possession" of a contraband article within the State may not be the one who has brought it into the State. So, only because a person is found to be in "possession" of a contraband article, it cannot be concluded that he himself brought the article into the State. A person shall not be convicted for offence u/s 55(a) read with Rule 9 of the Rules, solely for the reason that he was found in "possession" of IMFL. Prosecution must prove that accused brought IMFL into the State. It can be proved either by direct evidence or by circumstantial evidence.

Now, coming to the facts of this case, I find that PW1 to PW3 were examined to prove that accused "imported" IMFL. None of them is an eye witness to such "bringing". None of them stated that accused "brought" IMFL into Kerala from any place situated outside Kerala. PW2 is the Preventive Officer, who supported prosecution to prove search and seizure. He stated that petitioner was found in a bus plying in Thalassery-Vadagara route via Mahe and he was having 10 bottles of IMFL in his possession at that time.

The mere presence of an accused in a bus plying between two places situated within the State of Kerala en-route Mahe (a place which lies outside the territorial limits of the State) with some bottles of IMFL will not prove that he "imported" IMFL. The absence of stickers of KSBC on such bottles will also not by itself prove that those are "imported" by the accused who is found to be in possession of the same. Neither of the above facts are sufficient to hold a person guilty of offence u/s 55(a) of the Act read with Rules 9 of the Rules, even though those may be two circumstances, coupled with proof of some other circumstances which may prove "import", depending upon facts and circumstances of each case.

Learned Public Prosecutor strongly argued that having proved that accused was in "possession" of liquor and did not account for such possession, the court shall presume that accused committed offence u/s 64 of the Act. It is for the accused to prove the contrary. I shall consider this argument. Section 64 of the Act is extracted here under:

In prosecutions u/s 55, section 55 B, section 56 A, section 57, section 58, section 58 A, and section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf u/s 8 or section 55 or section 55 B or section 56 or 56 A or section 57 or section 58 or section 58A or section 58 B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence.

To understand the real scope of Section 64, it may be necessary to advert to certain facts in this case. As per evidence adduced in this case, accused was found in possession of 10 bottles of IMFL. Section 13 prohibits possession of excess quantity of liquor than what is prescribed under the notification issued under the said Section. However, there is no total prohibition for possession of Indian made foreign liquor, u/s 13.

Permissible quantity of IMFL, as on the date of occurrence is 4.5 litres as per the relevant notification. But, petitioner was in"possession" of only 3.750 litres of foreign liquor, which is less than the permissible quantity prescribed by notification. Hence, he was notin illegal possession of IMFL and he cannot be held liable under Section55(a) for such possession. It also follows that he cannot also be presumed to have committed offence u/s 55(a), being in "possession" of Indian made foreign liquor, by virtue of Section 64 of the Act.

So, it is abundantly clear that in a case in which the case records and documents collected on investigation do not disclose any allegation which would constitute offence u/s 55 of the Act,court shall not draw any presumption u/s 64 of the Actthat accused committed such offence. The court shall not presume u/s 64 of the Act, commission of an offence which is not alleged by prosecution. Section 64 of the Act is not intended to presume something which is not even alleged by prosecution.

In this case, prosecution itself has not alleged that accused "imported" IMFL. There is nothing on record to presume that accused brought IMFL into the State. In evidence also, it was not even stated that accused imported IMFL or brought the same into the State from a place lying outside the State. In the absence of allegation that accused "imported" IMFL ie., he brought the same into the State, no presumption can be drawn u/s 64 of the Act to hold that an accused committed any act, in contravention of Rule 9 of the Rules and thereby, committed offence u/s 55(a) of the Act. A mere quoting of the provision in the charge is not sufficient to draw presumption u/s 64 of the Act that an accused committed an offence u/s 55(a) read with Rule 9 of the Rules.

Revision petitioner was arrested merely because he was in "possession" of IMFL. The trial court also convicted accused on finding that he was in "possession" of IMFL, even though such possession of permissible quantity of IMFL is not an offence. It is also relevant to note that even detecting officer did not ascertain from accused from where he obtained the article or whether he brought it from Mahe, a place situated outside Kerala. He did not even verify the ticket nor did he question the conductor, PW3 or driver or any of the passengers, from which place he boarded the bus. He did not satisfy himself that petitioner committed any act or omission which would make liable for any offence under the Act. A person can be arrested only on a reasonable belief that he has committed an offence. If not, arrest itself will be illegal.

Even after arrest, investigating officer also has not conducted any investigation to confirm whether accused committed any act, in violation of the Act. Before a report was filed against accused, charge-sheeting him for the offence under the Act, investigating officer ought to have investigated into the relevant facts to find out what exactly is the overt act committed by accused which will make him liable for offence under the Act. He should have also collected evidence to prove alleged offence. But, investigating officer proceeded as though "possession" of IMFL is enough to prove "import." It is also pertinent to note that neither the detecting officer nor the investigation officer call upon accused to account for possession of IMFL.

Presumption u/s 64 of the Act is not available to an investigating officer. He shall not draw any presumption u/s 64 of the Act that a person committed various offences under the Act only because he was found in possession of IMFL. He shall investigate and find out what act and/or omission are committed by accused which makes him liable for any of the offences under the Act.

In the light of the arguments advanced and the nature of findings entered into by the court below, I am bound to examine whether confirmation of the conviction by appellate court on the finding that accused was "transporting" foreign liquor is sustainable or not. "Transport" is defined u/s 3(18) of the Act. "Transport", under the Act means, to "move" from one place to another within the State. It is not a mere journey of a person in a vehicle in which, a contraband article is kept which makes him liable for "transportation" of liquor. He must "move" the article with intention to move it.

23.The prosecution must also allege and prove that accused not only "moved" the contraband article from one place to another but both such places lie within the State of Kerala to constitute [Crl.R.P.No.282/02] 11"transport". Prosecution does not have a case that petitioner"transported" the article, within the meaning of section 3(18) of the Act, and in violation of Section 10 of the Act. On the other hand, its case is that he "imported" IMFL. Charge was also framed for offence u/s 55(a) of the Act read with Rule 9 of the Rules which involves "import" and not "transport". Therefore, the conviction entered against petitioner on the finding that he "transported" IMFL is clearly illegal.

"Import" and "transport" are two acts which are totally different from each other and mutually exclusive. To constitute "transport" under the Act, the place from which, and the place to which, liquor is "moved" must lie within the State itself. But in the case of "import", one of such places must be situated in Kerala and the other must lie outside Kerala. While "bring" is the act which is relevant in "import", what is relevant in "transport" it is, "move".

The courts shall not loosely use the expressions, "transport" "import" "possess" etc., without understanding import of those expressions under the Act and convict an accused under some provision under the Act stating that he committed one of the above acts. The court shall not, at any rate, proceed on the assumption that expressions like "possession," "transport", "import", etc. referred to in the Act mean the same thing. Each act is a separate act calling for separate punishment. A person cannot be found guilty for transporting or importing liquor only because he is in possession of the same.

Referring to "transport" and "possession", Supreme Court in Puranmall Agarwalla Vs. The State of Orissa, , considered the question whether "transport" and "possession" (under the Opium) Act are same acts, and it was held that both are different acts. "Transport" is defined identically in Opium Act and Abkari Act. Though "possession" is not defined under either of the Acts, the expression "possession" under both Acts connotes same acts, as seen from the various precedents. If acts of import, transport or possession are proved, each such act will call for separate punishment, since those do not connote same acts.

A portion from Puranmall Agarwalla Vs. The State of Orissa, can be extracted as follows:

The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act or any other enactment relating to opium or to rules framed under the Act, are two separate offences. Mere possession of opium may not, on the proved facts of a particular case, involve any question of transporting it. Transport of opium may, in certain circumstances, include the element of possession, while in other cases, it may not. A person may transport opium through various agencies and yet not be in possession of it at the time it was transported. On the other hand, a person may transport opium and yet be in possession of it. In the latter case, such a person would be guilty both of transporting opium and being in possession of it. Under the Act, ''transport'' means ''to remove from one place to another within the same State.'' A person may remove opium and be in possession of it while removing it, and he can also remove it from one place to another within the same State in circumstances when while removing it he is not in possession of the opium. The intention of the Legislature appears to have been that neither possession of opium nor transporting of opium was permissible, if such possession or transporting was in contravention of the provisions of the Opium Act or any other enactment relating to opium, or rules framed under the Opium Act.

It is also necessary to mention here that even the mere proof of "transport", "import" or "possession" of liquor does not constitute any offence u/s 55(a) of the Act. "Possession", "transport" or "import" of liquor becomes an offence, only if a person is proved to have committed any of such acts, in contravention of the provision of the Act or Rules under which, such act is prohibited. A person cannot be convicted on the mere finding that he was transporting, importing or was in possession of liquor. Prosecution must prove that such acts are done in contravention of the Act, Rules or Order.

While Section 10 of the Act prohibits "transport" of liquor, Section 6 prohibits "import" of liquor. "Import" of foreign liquor is specifically prohibited under Rule 9 of the Rules. "Possession" of excess quantity of liquor is prohibited u/s 13 of the Act but, there is no total ban of possession of liquor under the said section. Therefore, the courts must be cautious, while dealing with offences under the Act. It must pay special care and attention not only to find out what is the act or omission allegedly committed by the accused but it must also confirm under which provision such act is prohibited under the Act, Rules or Order. It is only if any of the acts referred to in the various sub-sections of Section 55 is committed by a person, in contravention of the provision of the Act, Rules or Order such person can be convicted u/s 55.

At any rate, a person cannot be convicted for offence u/s 55(a) of the Act read with Rule 9 of the Rules, on the finding that he "transported" IMFL or was in "possession" of the same. Only if the court finds that accused "imported" IMFL, as defined u/s 3(16) and in violation of Rule 9 of the Rules, he can be convicted u/s 55(a) of the Act read with Rule 9 of the Rules.

To sum up, I hold that courts below committed serious illegality in convicting petitioner for offence u/s 55(a) of the Act read with Rule 9 of the Rules, on the finding that he was in "possession" of IMFL or that he was "transporting" the same.Prosecution failed to prove that accused imported IMFL, in violation of Rule 9 of the Rules. Hence, the conviction and sentence passed against revision petitioner u/s 55(a) of the Act read with Rule 9 of the Rules are unsustainable. In the result, the following order is passed:

The conviction and sentence passed against the revision petitioner for offence u/s 55(a) of Abkari Act read with Rule 9 of foreign Liquor Rules are set aside.

The revision petitioner is found not guilty and he is acquitted of offence u/s 55(a) of Abkari Act read with Rule 9 of foreign Liquor Rules.

Petitioner is set at liberty forthwith. Petition is allowed.