Allowed

Dinesan v. the State of Kerala

Kerala HC20 Dec 2016CRL.A/1883/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal of two appellants convicted for transporting Indian Made Foreign Liquor. The court held that since the liquor was intended for Pondichery sale and not illegal import/export, Section 55(a) did not attract. Furthermore, the quantity possessed fell within the legal limit under Section 63. The conviction and sentence were set aside.

What did the court decide?

Conviction and sentence under Sections 55(a) and 63 of the Abkari Act set aside; appellants acquitted.

Dinesan Vs the State of Kerala — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938

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CRL.A.No. 1883 of 2009 (A)

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SC 34/2007 of ADDITIONAL SESSIONS COURT, VATAKARA

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APPELLANT/ACCUSED:

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1. DINESAN, AGED 34 YEARS, S/O.POKKINAN, PATTANDIYIL HOUSE, EDACHERY NORTH, CHUNDIYIL, VATAKARA TALUK.

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2. VIJAYAN, AGED 40 YEARS, S/O.KUNHIKANNAN, PATTANDIYIL HOUSE, EDACHERY NORTH, CHUNDIYIL, VATAKARA TALUK.

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BY ADVS.SRI.C.R.SIVAKUMAR SMT.NIKHILA SOMAN

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RESPONDENT/COMPLAINANT:

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THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, EDACHERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.

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BY SR. PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

20/12/2016

B. KEMAL PASHA, J

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Crl.Appeal No.1883 of 2009

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=================

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Dated this the 20^th day of December, 2016

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J U D G M E N T

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A1 and A2 in Sessions Case No.34 of 2007 of

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the Additional Sessions Court, Vatakara, who stand convicted under Section 55(a) of the Abakri Act and each of whom sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default, to undergo rigorous imprisonment for six months, have come up in appeal.

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The prosecution case is that on 05.04.2006 at 9.30 p.m., the appellants were found transporting 12 bottles of Indian Made Foreign Liquor, each containing 375 ml capacity by motorbike bearing registration No.KL-18-B-9670 through Vatakara Nadapuram Road at Eramala Amsom, Orkkatteri Desom, in contravention of the provisions of the Abkari

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Crl.A.No.1883 of 2009

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Act.

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The offence was detected by PW1, Sub Inspector of Police, Edacheri Police Station. He placed the appellant under arrest through Exhibit-P2 arrest memo. He seized the contraband through Exhibit-P1 mahazar. Two bottles were taken as samples. He registered the crime through Exhibit-P4 First Information Report. The samples were produced before court on 06.04.2006 through Exhibit-P5 property list. Exhibit-P6 inventory was obtained from the Assistant Excise Commissioner and got it certified from the learned Magistrate through Exhibit-P7. Forwarding note was furnished, the copy of which is Exhibit-P8. On obtaining Exhibit-P9 certificate of chemical analysis, PW1 filed the Final Report.

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On the side of the prosecution, PW1 to PW6

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were examined and Exhibits-P1 to P10 were marked. No defence evidence was adduced. The court below

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Crl.A.No.1883 of 2009

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found the appellants guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid.

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Heard the learned counsel for the appellants and the learned Senior Public Prosecutor.

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The learned counsel for the appellants has argued that this is not a case wherein an offence under Section 55(a) of the Abkari Act can be invited, and the court below has gone wrong in convicting and sentencing the accused under Section 55(a) of the Abkari Act.

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An offence under Section 55(a) of the Abkari Act can be attracted only when there is illegal export, illegal import or illegal transport. Here, in this particular case, if as a matter of fact, the contraband involved was meant for sales in ‘State of Pondichery only’, an offence under Section 55(a) could be attracted, when the said contraband was being

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Crl.A.No.1883 of 2009 4

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transported through the road in the State of Kerala. At the same time, the contents of Exhibit-P1 mahazar shows that the said contraband was ‘for sale in Pondichery’. It does not show that the same was meant ‘for sales in Pondichery only’. If it is meant for sale in Pondichery, it can be sold anywhere. Even according to PW1, the label showed that the same was for sale in Pondichery. When there is nothing to show that the said liquor was not meant for sales anywhere else, it cannot be said that the contraband in question was seized during any illegal import or illegal transport. Matters being so, an offence under Section 55(a) of the Abkari Act cannot be attracted in a case like this.

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Regarding the offence under Section 63 of the Abkari Act also, it has to be noted that the contraband involved is admittedly Indian Made Foreign Liquor. There is absolutely nothing to show that the

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Crl.A.No.1883 of 2009 5

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same was not procured from the outlet of the Kerala State Beverages Corporation. The total quantity of the contraband involved was 4.2 litres. When two persons were involved and six bottles each were separately packed in two covers, each one of the accused was in possession of 2.1 litres. A person can lawfully possess 3 litres of Indian Made Foreign Liquor procured from the outlet of the Kerala State Beverages Corporation. Therefore, in this particular case, Section 63 of the Abkari Act has also no applicable. The conviction and sentence passed by the court below in this case are liable to be set aside.

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In the result, this Crl. Appeal is allowed and the conviction and sentence passed by the court below

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are set aside. The appellants are acquitted.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/20/12/16

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// True Copy //

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P.A. To Judge

Dinesan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Dinesan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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