Rajan @ Rajagopalan vs State of Kerala

N.K. Balakrishnan, J.—The appellant challenges the conviction and sentence passed against him for offence punishable under Sec. 55(a) of Abkari Act.

The allegation is that on 14.4.2000 when PW1 and other excise officials were on patrol duty and when they reached the railway station-bus stop shed at Vadakkanchery at about 3.30 PM, they found the appellant carrying a gunny bag. When it was examined, it was found to contain a card board box in which there were 12 bottles of 750ml each IMFL - Jawan XXX Special Rum. Those bottles were having the company seal and also the sticker of Kerala State Beverages Corporation. One of the bottles was opened. PW1 and others smelt and tasted the liquid and ascertained that it was liquor. Sample of 300ml was taken from the said bottle. The properties were seized as per Ext.P1 mahazar. The appellant was arrested for which Ext.P2 arrest memo was prepared. The accused and the properties were produced before the court. After conducting investigation charge sheet was laid against the appellant.

PW1 to PW8 were examined and Exts.P1 to P11 were marked. MO1 series to MO3 series were identified and marked.

The learned Sessions Judge after thorough scrutiny of the evidence accepted the case of the prosecution and thus the appellant was convicted as mentioned above and he was sentenced to undergo R.I. for one year and to pay Rs. 1 lakh as fine and in default to undergo R.I. for three months.

The learned counsel for the appellant submits that the court below has not appreciated the evidence properly. There is no legal evidence to hold that the accused was arrested and the properties were seized at the time and place as alleged by the prosecution. The fact that even according to the prosecution, the aforesaid 12 bottles were in sealed condition having seal of the company where it was manufactured and that all the bottles contained stickers of KSBC affixed, should have been taken into consideration by the court below to hold that those bottles were purchased by the appellant and that those bottles were being taken to his house for using it in connection with some ceremonies in his family house. In any event, according to the learned counsel, the conviction under Sec. 55(a) cannot be sustained. If at all the conviction can be had only under Sec. 63 of the Abkari Act since even going by the evidence adduced by the prosecution there was only excess quantity by 4.50 liters. The total quantity of the liquor was only 9 liters. As on the crucial date, a person was entitled to possess 4.50 liters of liquor purchased from a duly licensed vendor.

Learned Public Prosecutor would submit that the accused did not produce the bill to prove that the liquor bottles were purchased from a duly licensed shop. It is also submitted that the accused did not put forward any specific case that he was carrying it to his house or to any other place and so simply based on the argument court cannot come to a conclusion that the liquor bottles were not possessed by him with intend to sell the same. The prosecution had no case that the accused was in the habit of unauthorisedly selling liquor from his house or from any other place. Since the burden is on the prosecution to prove that the liquor bottles were carried with intend to sell the same, it cannot be said that mere possession of excess quantity of liquor would attract an offence under Sec. 55(a) of Abkari Act. In the absence of any other evidence, the conviction can be had only under Sec. 63 of the Abkari Act, the learned counsel submits.

On a reappraisal of the evidence, it is seen that there is evidence to show that the 12 bottles of XXX Rum were seized by PW1 from the possession of the accused. The evidence is also consistent that all the bottles were in sealed condition and bore the sticker of KSBC. Therefore, even if the accused failed to produce the bill, it is reasonable to hold that he had purchased the same from a duly licensed vendor. There is no evidence to hold that it was intended to be sold. No other evidence was adduced by the prosecution to show that the accused was indulged in sale of liquor at any point of time. Therefore, it can be found that he was in possession of the liquor in contravention of the rules which would attract only an offence under Sec. 63 of the Abkari Act. As such, the appeal is to be allowed to the extent indicated above.

In the result, this criminal appeal is allowed in part. The conviction and sentence passed against the appellant for offence punishable under Sec. 55(a) of the Abkari Act are set aside. Instead, he is convicted for the offence punishable under Sec. 63 of the Abkari Act and he is sentenced to undergo imprisonment till the rising of the court and to pay Rs. 5,000/- as fine, in default whereof to undergo S.I. for one month. The appellant/accused will surrender before the IIIrd Addl. Sessions Judge (Adhoc) Fast Track-I, Thrissur on or before 17.2.2012 to undergo imprisonment till the rising of the court and to pay the fine.