BALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant who stands convicted for the offence under S.58 of the Abkari Act to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1 lakh and in default to pay fine amount to undergo simple imprisonment for six months has sought for setting aside the conviction and sentence.

(2.) The appellant was tried in the charge that on 21/03/2000 at 18 hours, he was found in the public road in possession of two bottles of Indian made foreign liquor i.e. Victoria XXX Rum containing 750 ml. each and 6 bottles of the same liquor containing 375 ml. each. The conviction is based on the evidence of PWs 1 to 5 and Exts. P1 to P4 documents included Ext. P4 the chemical analyst report which vouchsafe the fact that the samples of the contraband taken at the spot and forwarded to the laboratory through the court contained 42.71 % and 43.15% by volume of ethyl alcohol.

(3.) It is the contention of the counsel for the appellant that the offence under S.58 cannot be attracted at all in view of the decision of this court in Sabu v. State of Kerala ( 2003 (2) KLT 173 ), wherein this court had held that with respect to the liquor duly purchased from the Kerala State Beverages Corporation, the offence would not lie. It is seen from the evidence adduced that the case of the prosecution that the contraband seized had the label Victoria XXX Rum. It is not a case of spurious liquor. There is absolutely no evidence to indicate that the contraband recovered is liquor, that has been illicitly manufactured. The Court also relied upon the decision of this court in Krishnankutty v. State of Kerala (2005 (2) KLD (Cri) 187), that held that in the absence of taking sample from each bottle the entire quantity cannot be said to be Indian made foreign liquor. The permissible quantity that can be legally carried is 1.5 litres. It is the version of PW 3, the detecting officer, that the sample was taken only from 2 bottles from each group, which would work out only 1100, which is below 1.5 litres. Hence apparently in view of the legal position in the matter conviction and sentence cannot be sustained. Hence conviction and sentence imposed by the court below is set aside. The appeal is allowed. The accused / appellant if he is custody in this case is to be released if he is not required to be detained in any other case.