V.AMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the accused in Calendar Case No. 222/1997 before the Judicial First Class Magistrate's Court, Nadapuram. He was prosecuted for an offence punishable under Section 55(a) of the Abkari Act and Rule 9; of the. Foreign Liquor Rules. The complaint against the petitioner as stated in paragraph 2 of the judgment of the Magistrate is as follows:

(2.) The petitioner raises two contentions. The first is that there is no reliable evidence to prove the prosecution case. According to the petitioner, the only evidence available is the interested testimonies of the excise officers namely PWs 1 & 4. The independent witness for the seizure mahazar did not support the prosecution case and turned hostile. That being so, there is no reliable evidence, to prove the prosecution case, is the first contention. The 2nd contention is that in this case the ingredients of Section 55(a) of the Abkari Act is not attracted. According to the petitioner, Section 55 (a) is attracted only if there is import of liquor into the State in contravention of the Act and Rules. The petitioner contends that here there is no allegation that the petitioner imported liquor from another State into Kerala State. It is further submitted that the fact that the bottles did not contain the labels of Kerala State Beverages Corporation is no ground to infer commission of offence under Section 55 (a), as laid down by this Court in Narayanan Nair v. State of Kerala, 2011 3 KerLT 722. Therefore, according to the petitioner, the prosecution has not proved any offence punishable under Section 55(a) of the Abkari Act and hence the petitioner is entitled to an acquittal in this case.

(3.) On the other hand, the learned Public Prosecutor would contend that the ingredients of Section 55(a) has been alleged and specifically proved in this case. He submits that the total quantity of liquor transported by the petitioner is 8.640 litres. Nobody can transport such quantity of liquor without a valid permit or licence, which is prohibited under the Foreign Liquor Rules and since the petitioner was actually transporting liquor in contravention of the rules, the same constitutes an offence under Section 55(a). Regarding the other contention, the learned Public Prosecutor would contend that there is no inviolable rule that without corroboration by independent witnesses, the evidence of excise officers cannot be the basis of a successful prosecution in an abkari case, He submits that here the evidence of PWs 1 & 4 are cogent and convincing. There is no allegation that they had any illegal motives in prosecuting the petitioner also. Further it is pointed out that although the seizure mahazar witnesses did not fully support the case of prosecution, they admitted their signatures in the mahazar and PW3 actually admitted having seen the excise officers seizing some materials from the scooter, although he did not say that the same was liquor. PW2 also supported the apprehension of the person and the scooter although he did not identify the petitioner as the person, who was apprehended by PWs 1 & 4. Therefore, according to the learned Public Prosecutor, the prosecution has proved the case against the petitioner beyond any reasonable doubt and therefore he is not entitled to an acquittal as argued by the counsel for the petitioner.