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Synopsis

The Kerala High Court on Tuesday ruled that the sale of liquor must be made in presenti in order to be considered a crime under Section 55(i) of the Kerala Abkari Act.

The single judge bench of Justice V.G. Arun was hearing an anticipatory bail application filed under section 438 of the Code of Criminal Procedure, 1973 by the petitioner-accused, who had been found with possession of 2.75 litres of Indian Made Foreign liquor.

The petitioner was the sole accused in the crime punishable under Section 55(i) of the Kerala Abkari Act.

The prosecution alleged that on March 11, 2023, in the evening at 6:00 pm, the petitioner was found in possession of 2.75 litres of Indian Made Foreign Liquor (for short ‘IMFL’) that was intended for sale. The prosecution further alleged that on seeing the excise party, the petitioner ran away from the spot.

The counsel appearing for the petitioner stated that no offence under Section 55(i) was made out since there was nothing to indicate that the petitioner had indulged in the sale of liquor. It was also submitted that 2.75 litres of Indian Made Foreign Liquor, allegedly recovered, was within permissible limits.

The public prosecutor appearing for the State submitted that the petitioner was earlier implicated in a crime alleging the commission of an offence under Section 55(a) of the Kerala Abkari Act.

After hearing the parties, court observed that there was prima facie merit in the contention that mere possession of the Indian Made Foreign Liquor, that too within permissible limits, cannot lead to a presumption that the liquor was intended for sale. The sale should be in presenti, for the offence under Section 55(i) of the Kerala Abkari Act to be attracted, court held.

Further, the court said that this matter will be decided by the Trial court. Accordingly, court disposed of the bail application.

Court also directed that the petitioner shall surrender before the investigating officer within two weeks.

Case Title: Jolly Vaerghese v. State of Kerala

Statute: The Kerala Abkari Act.