Illicit Sale Of Liquor Should Be 'In Praesenti' To Attract Offence Under Kerala Abkari Act: High Court

The Kerala High Court on Tuesday held that the sale of liquor ought to be made in praesenti in order to attract the offence under Section 55(i) of the Kerala Abkari Act (hereinafter, 'the Act'). 

Section 55(i) of the Act states that a person who sells or stores for sales liquor or any intoxicating drug in contravention of the Act or any Rule or Order made under the Act shall be punished. 

Justice V.G. Arun, while considering an anticipatory bail application of the petitioner-accused who had been found in possession of 2.75 litres of Indian Made Foreign Liquor, observed,

"There is prima facie merit in the contention that mere possession of the Indian Made Foreign Liquour (IMFL), 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) to be attracted." 

The Court added that the same would be a matter to be decided by the Trial Court. 

The prosecution allegation against the petitioner was that the said amount of IMFL had been intended for sale, and that the petitioner had run away from the spot on seeing the excise party. 

It was contended by Advocates Sruthy N. Bhat and Nikita J. Mendez on behalf of the petitioner that even if the prosecution allegation was accepted in its entirety, no offence under Section 55(i) could be made out against the petitioner since there was nothing to indicate that the petitioner had indulged in sale of liquor. It was further submitted that the amount of liquor allegedly recovered from the petitioner was also within permissible limits. 

The Senior Public Prosecutor Vipin Narayan argued that the petitioner was earlier also implicated in a crime alleging commission of offence under Section 55(a) of the Kerala Abkari Act.

It is in this context that the Court ascertained there was prima facie merit in the contention advanced that the mere possession of liquor within permissible limits could not lead to the presumption that it had been intended for sale. 

"The petitioner shall surrender before the investigating officer within two weeks. On surrender, the petitioner shall be interrogated and produced before the jurisdictional court on the same day. The petitioner is at liberty to move an application for bail at that point of time and in such event, the learned Magistrate shall consider the bail application and pass appropriate orders thereon, preferably on the same day," the Court held while disposing the anticipatory bail plea. 

Case Title: Jolly Vaerghese v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 222

Click Here To Read/Download The Order