Allowed

Gangan @ Korembeth Gangadharan v. State of Kerala

Kerala HC26 Jun 2019CRL.A/721/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against conviction under Section 55(a) of the Abkari Act. The court held that mere labels on liquor bottles do not prove illegal importation without evidence of violation during transit, and the quantity possessed was within permissible limits. The appellant was acquitted.

What did the court decide?

The conviction and sentence were set aside; the appellant was acquitted; the bail bond was discharged.

Gangan @ Korembeth Gangadharan Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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.SUDHEENDRA KUMAR

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WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941

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CRL.A.No.721 of 2007

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AGAINST THE ORDER/JUDGMENT IN SC 672/2005 of ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY DATED 19-01-2007

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APPELLANT/S:

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GANGAN @ KOREMBETH GANGADHARAN AGED 54 YEARS S/O.KRISHNAN, 54 YEARS, MUZHAPPILANGAD,, THALASSERY TALUK, KANNUR DISTRICT.

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BY ADVS.

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SMT.K.K.CHANDRALEKHA SRI.SUDHEESH THAROL

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RESPONDENT/S:

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STATE OF KERALA (SHO) EDAKKAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.

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OTHER PRESENT:

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SRI.E.C.BINEESH,PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Case No. Crl.A.721/07

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JUDGMENT

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The appellant was convicted by the court below under

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Section 55(a) of the Abkari Act.

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The prosecution allegation is that on 25.9.2003 at

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about 8.30 a.m., the appellant was found transporting 1.470

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litres of Indian Made Foreign Liquor having the label 'for sale in Pondicherry only', in contravention of the provisions of the Abkari Act. The petitioner was arrested from the

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spot and the contraband was seized.

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Since there is no representation for the appellant,

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this Court has appointed Adv.Sri.R Harikrishnan, as the Amicus curiae to argue the case for the appellant.

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Heard the learned Amicus Curiae and the learned

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Public Prosecutor.

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Case No. Crl.A.721/07

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In the trial, PW1 and PW4 were examined and

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Exts.P1 to P8 were marked for the prosecution. No

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evidence was adduced from the side of the defence.

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PW1 and PW2 were the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. PW3 was the Sub Inspector of Police, who detected the offence. PW3 stated that the appellant was found in possession of two bottles, each bottle having a capacity of 375 m.l. each and four bottles, each bottle having a capacity of 180 ml each, of Indian made foreign liquor on 25.9.2003 at 8.30 a.m. The evidence of PW3 would show that the said bottles contained the label 'for sale in Pondicherry only.'

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This Court in Tippu Mohammed v. State of Kerala

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[2014 KHC 852 : 2015(1) KLD 59] held that by mere

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Case No. Crl.A.721/07

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production of bottles having labels “for sale in Karnataka only” cannot by itself prove the offence under Section 55(a) of the Abkari Act in the absence of any evidence to show that the liquor allegedly possessed by the accused was imported in violation of the Act. In this case, the evidence of PW3 does not show anything to the effect that the liquor possessed by the appellant was imported by the appellant. No investigation was also conducted in this regard. Therefore, merely because the bottles contained the label that the liquor was intended for sale in Karnataka only, it cannot be said that the said liquor was imported into the state of Kerala by the appellant.

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This court in Mohanan v. State of Kerala [2007 (1)

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KLT 845] held that Section 55(a) of the Abkari Act is

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applicable only when persons illegally import, export or transport

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Case No. Crl.A.721/07

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liquor or in possession of liquor while illegally importing. In this case, there is absolutely no material before the court

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to indicate that the appellant illegally imported or transported the contraband. There is also no allegation that the appellant was in possession of liquor while illegally importing. In view of the above reasons, the offence under Section 55(a) of the Abkari Act is not attracted in this case. In the said circumstances, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act cannot be sustained and consequently, I set aside the same.

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Now the next question to be considered is as to whether the appellant had committed any other offence. It appears that the appellant was in possession of a total quantity of 1.470 litres of Indian made foreign liquor at the relevant

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Case No. Crl.A.721/07

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time. The date of occurrence was on 25.9.2003. As per S.R.O. No.725/2003 dated 2.8.2003, the permissible quantity of Indian made foreign liquor which a person could possess was three litres. Therefore, there can be no doubt that the appellant was in possession of only permissible quantity of the Indian made foreign liquor. Therefore, it can be safely held that the appellant did not commit any offence under the Abkari Act.

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In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

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B. SUDHEENDRA KUMAR, JUDGE .

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dl/

Gangan @ Korembeth Gangadharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gangan @ Korembeth Gangadharan v. State of Kerala

Case brief

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