NARAYANAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) On a finding that accused was in "possession" of, or "transporting" Indian made foreign liquor ('IMFL', for short), can he be convicted for offence under Section 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 under Section 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, a report was filed before Magistrate Court, alleging offence under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules.

(2.) PWs. 1 to PW3 were examined and Exts. P1 to Ext. P3 and MO1 series were marked on its side. Accused contended at the time of questioning under section 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 under Section 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.

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