VENU K V Vs. STATE

JUDGEMENT

(1.) Excise Inspector, Koothuparamba prosecuted the revision petitioner before the Chief Judicial Magistrate, Thalassery in C.C. No. 74/1997, accusing offence under Section 55 (a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, with an allegation that at 5.30 P.M., on 12/11/1996, while PWs 1 and 2, two Preventive Officers attached to the Excise Range moving on petrol duty found the revision petitioner carrying ten bottles, each containing 375 mls of Princes Fine Quality Brandy. Since the revision petitioner pleaded not guilty, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exhibits P1 to P3 and MOI series were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence. No defence evidence was let in. On appraisal of the evidence, the revision petitioner was found guilty, convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 25,000/- with a default sentence of rigorous imprisonment for six months.

(2.) Aggrieved by the above conviction and sentence, he preferred Crl. Appeal No. 401/1998 before the Sessions Judge, Thalassery. The Sessions Judge, by judgment dated 11/10/2004, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

(3.) I have heard Adv. Sri. A. Arunkumar, the learned counsel appearing for the revision petitioner and Miss. Madhu Ben, the learned Government Pleader. Perused the judgment impugned. Going by the judgment impugned, I find that there is convincing evidence regarding the arrest of the revision petitioner and seizure of the liquor. It appears that the Courts below found the revision petitioner guilty on a wrong notion that the liquor seized was imported from Mahe to Kerala because the arrest and seizure was near the state border. It is not in dispute that by virtue of SRO No. 89/69 dated 19/2/1969, as on the date of seizure, the permitted quantity of foreign liquor which a person could possess is 4 1/2 litres. The quantity that the revision petitioner was carrying is within the permissible limit, namely, 3.75 litres. Then comes the question whether the liquor was imported from Mahe or not. Regarding that absolutely there is no investigation or evidence other than the plea that the liquor bottles didn't contain the seal of the State Beverages Corporation. To a question in cross-examination PW1 would admit that he is not in a position to say whether the liquor seized was manufactured in Mahe or not. No investigation was conducted by PWs 1 and 2 who detected the liquor. PW5, the Investigating Officer also had not conducted any investigation as to whether the liquor seized was imported from Mahe or not. Such being the evidence on record, it is legally not permissible to presume that the liquor seized was imported from Mahe so as to constitute offence under Section 55(a) of the Abkari Act. There cannot be a presumption that all liquor bottles without seal of the State Beverages Corporation are imported from Mahe or other state. There is little evidence to come to a conclusion regarding the source of the liquor that the revision petitioner was carrying. There is nothing to suggest that he collected the liquor not from a licensed outlet in the State of Kerala. Therefore, I find that the offence alleged is not established by the prosecution. The conviction and sentence under challenge are not sustainable.