On 19 August, Justice R. Narayana Pisharadi of Kerala High Court found Jabbar not guilty in the liquor case.
Brief Facts of the Case
On 27.06.2012, at the bus waiting shed near Mankavu Junction in Kozhikode, the Excise Inspector of Feroke Excise Range found the Jabbar (petitioner/accused), in possession of a plastic cover which contained nine bottles, each having the capacity of 180 ml, of Indian Made Foreign Liquor. The bottles of liquor seized from the possession of the Jabbar had the label “For Sale in Pondicherry State Only”. The trial court found the Jabbar guilty of the offence punishable under Section 58 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month.
Jabbar filed a case before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court under Section 58 of the Act. The appellate court confirmed the conviction as well as the sentence against the accused and dismissed the appeal. Later Jabbar came to High Court.
The petitioner argued that the prosecution could not, by establishing the aforesaid fact, prove that the petitioner committed an offence punishable under Section 58 of the Act.
The respondent argued that the accused did not offer any satisfactory explanation for the possession of liquor and therefore, the presumption under Section 64 of the Act that he committed the offence under Section 58 of the Act is attracted. The respondent also requested to draw a discretionary presumption that the liquor found in the possession of the accused was imported and then to raise the compulsory presumption under Section 64 of the Act to find the accused guilty of the offence under Section 58 of the Act and the court cannot adopt such a course. As it was noticed earlier, a presumption cannot be drawn on the basis of another presumption.
The court referred into the case Purushan v. the State of Kerala: 2002 (2) KLT 661 and it has been held – In Section 58, the possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. What is the distinguishing factor is that for the offence under Section 58, the person in possession has knowledge of the fact that the liquor was unlawfully imported, transported or manufactured or is knowing that the duty, tax or rental payable under the Act had not been paid. The possessor therein is not directly involved in the process of import, export or transport and all that he knows at the time of holding possession of the liquor is the fact that the liquor had not come through the genuine source, but it had already been unlawfully imported, manufactured or transported.
The court also referred into the case Suresh Budharmal Kalani v. the State of Maharashtra: AIR 1998 SC 3258 and held that a presumption cannot be drawn on the basis of another presumption. A presumption can be drawn only from facts – and not from other presumptions – by a process of probable and logical reasoning.
Hearing both sides the court said, that the accused cannot be found guilty of the offence punishable under Section 58 of the Act only on the ground that the bottles of liquor found in his possession had the label “For Sale in Pondicherry State Only” and the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 58 of the Abkari Act, which stands affirmed by the appellate court, was set aside.
The petitioner/accused was found not guilty of the aforesaid offence and he was acquitted. The bail bond executed by him was cancelled and he was set at liberty. Fine amount, if any, remitted by him shall be refunded to him.
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