The court set aside conviction under the Kerala Abkari Act for illicit liquor possession. Finding the prosecution failed to prove the contents of unopened bottles via sampling and relying on Krishnankutty, the court held the seized items could not be treated as contraband.
Petitioner acquitted of all charges and bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
WEDNESDAY, THE 20TH FEBRUARY, 2008 / 1ST PHALGUNA, 1929
Crl.Rev.Pet.No. 570 of 2000
---------------------------------(CRA.219/1998 of SESSIONS COURT, THRISSUR CC.823/1996 of JUDL. FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY)
REVN. PETITIONER/APPELLANT/ACCUSED:
----------------------KOCHU ALIAS XAVIER, S/O.VARKEY, KOODAKATTIL HOUSE, MANALITHARA VILLAGE OF POST, TALAPPILLY TALUK, THRISSUR – 680 589.
BY ADV. SRI.DILIP J. AKKARA
RESPONDENTS/RESPONDENTS/COMPLAINANT:
BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.R.P.NO. 570 OF 2000
Dated this the 20th day of February, 2008.
O R D E R
The revision petitioner is the sole accused in C.C.No.823 of 1996 of the Judicial First Class Magistrate Court, Wadakkancherry for the offences punishable under Sections 58 and 55(i) of the Kerala Abkari Act. The trial court convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.25,000/- and in default of payment, he was directed to undergo simple imprisonment for a period of three months.
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for the records relating to Crl.Appeal No.219/98 of the Sessions Court, Thrissur and C.C.No.823/96 of the Judicial First Class Magistrate Court, Wadakkancherry and set aside the conviction and sentence and acquit the petitioner.
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report was filed before the court below on the basis of which the trial court took cognizance. During the course of trial, Pws. 1 to 4 were examined from the side of the prosecution and Exts.P1 to P4 were marked as documentary evidence. From the side of the defence, there was neither any witness nor any document. Mos.I to VI were marked as material objects. On appreciation of the evidence and report, the trial court found that the accused was guilty of the offences and he was convicted imposing sentence which is already mentioned above. Challenging the above order of conviction and the sentence passed by the trial court, the petitioner preferred Crl.Appeal before the lower appellate court. By judgment dated 19.5.2000, the Sessions Court, though maintaining the conviction, reduced the sentence to simple imprisonment for a period of one month from six months fixed by the trial court. It is the above judgment of the court below and the conviction and sentence are under challenge in this Crl.Revision Petition.
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broken or opened plastic bottle which contained 200 ml. of Indian made foreign liquor. Even, according to Pws.1 and 4, no sample was taken from the unopened or unbroken plastic bottles which are alleged to have been seized from the possession of the accused. So, according to counsel for the revision petitioner, what the prosecution has proved is that the accused was found in possession of 200 ml. of Indian made foreign liquor and there is no evidence to show that what contained in 7 bottles is liquor. Therefore, according to the counsel, even though the entire prosecution case is admitted as true, not conceded; no offence is disclosed against the petitioner. Counsel submits that possession and use of Indian made foreign liquor is not prohibited and not illegal and what is prohibited is the possession of the excess quantity. Thus, according to learned counsel for the petitioner, no evidence is made out as against the revision petitioner.
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eight bottles of Indian made foreign liquor were seized from the possession of the petitioner and the Excise Authorities took samples from the bottle which was opened and the quantity contained therein is 200 ml. of Indian made foreign liquor. Since the samples were taken from the 200 ml. of Indian made foreign liquor contained in the opened bottle, there was no necessity to take samples from the other bottles which were found in tight. Therefore, the Public Prosecutor submits that the order of conviction and sentence passed by the court below is legal and valid.
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recovery and they turned hostile to the prosecution. Therefore, there is no independent evidence to prove the seizure of the Indian made foreign liquor from the possession of the petitioner/accused. In the absence of any independent witnesses, regarding the seizure from the possession of the petitioner, it appears to me that it is absolutely necessary to prove the contents of the bottles which are alleged to have been seized from the possession of the petitioner. In the absence of the independent evidence, it is the burden of the prosecution to prove that the material which is alleged to have been contained in the bottles which are seized from the possession of the petitioner is none other than the contraband article. In the absence of any positive evidence to show that the liquid which contained in the unopened bottles which are alleged to have been seized from the possession of the petitioner is the Indian made foreign liquor, it cannot be said that the accused had committed offences punishable under Sections 55(i) and 58 of the Abkari Act. In these circumstances, it is
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relevant to refer a decision of this Court reported in Krishnankutty v. State of Kerala (2005(3) KLT 568). In the above decision, a learned Judge of this Court held that it is the duty of the prosecution to establish beyond the shadow of doubt that there is violation of a particular provisions of an Act under criminal law. In the above decision, the court has held that the permitted quantity, as notified at the relevant time, was 1.5 litres. PW3, the investigating officer, also speaks of the same. The prosecution had established that the accused possessed only 750 ml. of Indian made foreign liquor. As the content of remaining seven bottles was not having been subjected to chemical examination, the same cannot be treated as liquor. Therefore, 750 ml. being within the permissible limit of 1.5 litres, the possession thereof will not be an offence. Same is the position in the present case. Pws.1 and 4 had chosen to take samples from the 200 ml. of Indian made foreign liquor contained in one broken or opened bottle, but no sample was taken from the remaining 7 bottles. So, there is no
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evidence as to the nature and contents of all the 7 bottles. In the absence of evidence in this regard, it cannot be said that the 7 bottles are containing Indian made foreign liquor. Therefore, it cannot be said that the petitioner has committed the offences under Sections 55(i) and 58 of the Kerala Abkari Act.
Sd/-
(V.K.MOHANAN)
Mbs/
Judge
-true copy-
P.A.to Judge.
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V.K.MOHANAN, J.
Crl.R.P.NO. 570 OF 2000
O R D E R
DATED: 20-2-2008
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3 issues framed by the court
Whether the prosecution failed to prove the contents of unopened liquor bottles beyond doubt since samples were not taken from them.
Whether the possession of illicit liquor within the permitted limit constitutes an offence under the Kerala Abkari Act.
Whether the absence of independent evidence regarding seizure and contents of seized items necessitates acquittal.
Colour shows how this judgement treated each authority
Krishnankutty v. State of KeralaReferred¶46
Krishnankutty v. State of Kerala (2005(3) KLT 568)
2 provisions across 1 enactments
KOCHU ALIAS XAVIER
THE STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
