Holding

Section 64 creates a presumption of guilt on possession of contraband, placing the burden on the accused to rebut, and the prosecution must prove conscious possession and mens rea, so the conviction stands.

Summary

The appellant, along with two others, was found in possession of 7,985 litres of spirit seized by police and was convicted under Section 55 of the Kerala Abkari Act. The appellant challenged the conviction on the ground that the Sessions Court had omitted the words "transport, transit or possesses" from Section 55, argued that the prosecution failed to prove his conscious possession and mens rea, and contended that the burden of proof should rest on the State. The Supreme Court held that Section 64 of the Abkari Act creates a statutory presumption of guilt when contraband is found in a person's possession, and that the accused must adduce sufficient evidence to rebut this presumption. The Court further clarified that the amended Section 55 expressly includes "possession" as an offence, and that the prosecution must prove both possession and the requisite mens rea. Consequently, the conviction was upheld and the appeal dismissed.

Issues considered

Whether Section 64 of the Kerala Abkari Act shifts the burden of proof to the accused to rebut the presumption of guilt upon possession of contraband.
Whether the prosecution must establish conscious possession and mens rea under Section 55 of the Act.
Whether the omission of the words "transport, transit or possesses" in the lower court's judgment affects the validity of the conviction.

Legislation cited

Subjects

contrabandpossessionpresumption of guiltburden of proofmens reaKerala Abkari ActSection 55Section 64criminal law

Judgment

A P.K. ARJUNAN
v.
STA TE OF KERALA

MARCH 14, 2007

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Kera/a Abkari Act; Ss. 55, 58 and 64:

Contraband goods-Possession of large quantity of spirit by accused
C appellant and others-Seizure by Police-Trial Court found accused guilty
of committing crime under Section 55 of the Act and sentenced him
accordingly-Affirmed by Sessions Court-Revision petition dismissed by
High Court-On appeal, Held: In terms of Section 64 of the Act, presumption
could be raised in regard to commission of offence in case contraband goods
D found in possession of a person-The person in whose possession such goods
found required to adduce sufficient evidence to rebut the presumption-A
penal statute though requires to be construed strictly but a potential offence
would be presumed to be non existing-However, when the statutory provisions
are clear and unambiguous , the same would be given its due effect without
taking recourse to any technical plea_:.!n terms of S.106 of the Evidence Act
E also whoeyer has any special knowledge of fact, onus of proof in respect
thereof lies on him-But accused failed to prove the same-Indian Evidence
Act, 1872-Section 106-Constitution of India, 1950-Article 17.

On the basis of information received from the Deputy Superintendent
F of Police, the Circle Inspector conducted a raid in a house and found a large
quantity of spirit, a contraband article, in the possession of the accused-
appellant and other accused persons, which was allegedly kept by them for
manufacturing of arrack. Appellant and other two accused were prosecuted
under Section 55 of the Kerala Abkari Act. The Judicial Magistrate found
them guilty of committing the crime under Section 55 of the Act and sentenced
G them to simple imprisonment of two years. Appeal against the order of the
Judicial Magistrate was dismissed by the Court of Sessions and Revision
petition was dismissed by the High Court. Hence the present appeal.

Appellant conten~ed that in the body of the judgment of the Sessions

H !042
P.K. ARJUNAN v. ST ATE OF KERALA 1043
j
Court, provisions of Section 55 of the Act had not been correctly reproduced A
in so far as the words "transports, transits or possesses" after the words
"imports, exports" and before the words "liquor or any intoxicating drug"
were missing and presumably, only on that premise, notice was issued and
leave was granted; that the High Court having found that the appellant was
not the employee of another-accused, it was for the prosecution to show that
he was in conscious possession of the contraband article, spirit, punishable
B
under Section 55(C) of the Act; and that, in any event, it was obligatory on
the part of the prosecution to establish existence of mens rea on the part of
J\ accused.

Dismissing the appeal, the Court
c
HELD:l.1. Section 64 of the Kerala Abkari Act raises a presumption
in regard to commission of offence in certain cases. If, therefore, a person is
found to be in possession of excise articles it is for him to adduce sufficient
and cogent evidence to rebut the presumption. [Paras 7 and 8) [1046-D, E)
D
1.2. Provisions in the Act having regard to the subject matter dealt with
thereby should be read in the context of Article 47 of the Constitution of India.
Dealing in liquor is considered to be "Res Extra Commercium". The Act
prohibits dealing with the said commodity except by way of a licence on the
terms and conditions mentioned therein. Illegal manufacture, possession,
transport, export etc. have been brought within the purview of the penal E
provision contained in Section 55 of the Act. Various new provisions have
been introduced by way of amendment carried out in the said Act from time to
time to bring within the purview of the statute the offences which were then
unknown. [Para I0) [1046-G; 1047-A, B]

) 1.3 Section 55 of the Act provides for a penal provision. The words F
'transport, transit or possession' have been introduced in the said Section by
Section 4 of the act IO of 1955. By reason of the said amendment, the lacuna
which existed in the statute thus was sought to be remedied. Even otherwise,
all the clauses specified in Section 55 of the Act, if read in their entirety,
'<
would give rise to a construction that the act of possession is involved in each G
,. one of the activities mentioned in the clauses specified therein. [Para 11]
(1047-B, CJ
1
1.4. A penal statute although is required to be construed strictly and a
potential offence would be presumed to be non-existing, the rule of purposive
construction in a case of this nature, and, in particular, in the matter of H
1044 SUPREME COURT REPORTS (2007] 3 S.C.R.

A possession of the articles which have expressly been prohibited, came up for l.
consideration before this Court, this Court held that when the statutory
provisions are clear and unambiguous, the same should be given its due effect
without taking recourse to any technical plea. [Para 12[ [1047-D, El

Indian Handicrafts Emporium & Ors. v. Union ofIndia & Ors., [2003) 7
B SCC 589 and Bairam Kumawat v. Union of India & Ors., (2003) 7 SCC 628,
relied on.

1.5. Where possession of a forbidden article constitutes an offence, the
.•
prosecution is duty bound to prove the ingredients therefor. Existence of
C mens rea, however, would be a question which has to be determined having
regard to the provisions of the statute. [Para 13) [1048-A)

lnder Sain v. State of Punjab, [1973) 2 SCC 372, distinguished.

1.6. In terms of Section 64 of the Abkari Act, the burden of proof is
D upon the accused to establish the foundation of the charge. Thus, it was for
the accused to prove the same. Section 106 of the Evidence Act also is a clear
pointer to show that whoever has any special knowledge of fact, onus of proof
in respect thereof would be on him. [Para 16) [1048-E, F)

Ram Rattan v. State of Punjab, (1979) Crl.L.J. 791, distinguished.
E CRJMINAL APPELLATE JURISDICTION.: Criminal Appeal No, 1114 of
2000.

From the Judgment dated 23.5.2000 of the High Court of Kerala at
Emakulam in Criminal R.P. No. 646/1993.
F C.K. Sasi, Himinder Lal for the Appellant

G. Prakash for Ramesh Babu M.R. for the Respondent

The Judgment of the Court was delivered by

G S.B. SINHA, J. I. The appellant along with one T.V. Raghavan Pillai
(since deceased) and Ismail (absconding accused), were found to be in
possession of 7985 litres of spirit in 42 barrels by the Circle Inspector of
Police, Hosdurg.
2. Seizure of the said excise article was made on the basis of the
H
P.K. ARJUNAN v. ST ATE OF KERALA [S.B. SINHA, J.] 1045
J
information recieved by the said officer from DYSP, kanhangad to the effect A
that spirit for the purpose of manufacturing arrack was stored in a house in
koolingal, without any permit. Admittedly, all the three accused were found
to be in possession of the said excise article.

3. They were prosecuted under Section 55 of the Kerala Abkari Act
("the Act", for short) and were found guilty therefore. B
4. The contention of the appellant before us was that he was an
employee of the said Ismail. The said defence has not been accepted. It
appears that in the body of the judgment of the learned Sessions Judge,
provision of Section 55 of the Act had not been correctly reproduced in so
far as the words "transports, transits or possesses" after the words "mport, C
export" and before the words "liquor or any intoxicating drug" were missing.
Presumably. only on that premises. notice was issued and leave was granted.

5. Section 55 of the Act reads as under:

"55. For illegal import, etc.- Whoever in contravention of this Act or D
of any rule or order made under this Act-
(a) imports, exports, transports, transits or ·possesses liquor or
any intoxicating drug; or
(b) Manufacture liquor or any intoxicating drug;
xxx xxx xxx xxx E
(d) taps or causes to be .tapped any toddy-producing tree, or
(e) draws or causes to be drawn toddy from any tree; or
(f) constructs or works any distillery, brewery. winery or other
)
manufactory in which liquor is manufacture; or F
(g) uses, keeps, or has in his possession any material, still, utensil,
implement or apparatus whatsoever for the purpose of manufacturing
liquor other than toddy or any intoxicating drug; or
(h) bottles any liquor for purposes of sale; or
G
(i) sells or stores for sale liquor or any intoxicating drug;
shall be punishable.-
(!) for any offence, other than an offence falling under clause (d)
or clause (e), with imprisonment for a term which may extend to
H
1046 SUPREME COURT REPORTS (2007) 3 S.C.R.
~
A ten years and with fine which shall not be less than rupees one
lakh and

(2) for an offence falling under clause (d) or clause (e), with
imprisonment for a term which may extend to one year or with fine
which may extend to ten thousand rupees or with both."
B 6. We may also notice the provisions of Section 58A of the Act which
reads:

"For sale of certain preparations:- Whoever sells any preparation .•
which he knows or has reason to believe is intended to serve as a
c substitute for alcohol or intoxicating drug shall, on conviction before
a competent court. be punished with imprisonment which may extend
to five years. or with a fine which may extend to fifty thousand
rupees, or with both.

Provided that nothing contained in this section shall apply to the
D sale of any medicinal preparation for bona fide treatment. mitigation
or prevention of disease in human beings or animals."

7. Section 64 of the Act raises a presumption in regard to commission
of offence i.n certain cases.

8. If, therefore, a person is found to be in possession of excise articles
E it is for him to adduce sufficient and cogent evidence to rebut the said
presumption.

9. Learned counsel appearing on behalf of the appellant before us would
raise two contentions. Firstly, it was submitted that the High Court having
found that the appellant was not the employee of the said Ismail, it was for
F
the prosecution to show that he was in conscious possession of the liquor
or any intoxicating liquor punishable under Section 55 (c) of the Act. Secondly,
it was contended that, in any event, it was obligatory on the part of the
prosecution to establish existence of mens rea on his part. In support of the
aforesaid contention. reliance has been placed on lnder Sain v. State of
G Punjab, (1973) 2 SCC 372 and Ram Rattan v. State of Punjab, (1979) Crl. L.J.
791.
"
...
10. The Act was enacted by the Maharaj a of Cochin. After the formation
of the State of Kerala, the said Act was adopted by the State. Provisions of
the said Act having regard to the subject matter dealt w ith thereby should,
H inour opinion, be read in the context of Article 47 of the Constitution of India.
P.K. ARJUNAN v. STATE OF KERALA [S.B. SINHA, J.] I 047
Dealing in liquor is considered to be "Res Extra Commercium". The Act A
) prohibits dealing with the said commodity except by way of a licence on the
terms and conditions mentioned therein. Illegal manufature possessoin,
transport, export etc. have been brought within the purview of the penal
provision contained in Section 55 of the Act. Various new provision have
been introduced by way of amendment carried out in the said Act from time
to time to bring within the purview of the statute the offences which than B
unknown.

11. Section 55 provides for a penal provision. The words 'transport,
transit or possession' have been introduced in the said section by Section
4 of Act I 0 of 1955. By reason of the said amendment, the lacuna which C
existed in the statute thus was sought to be remedied. Even otherwise. all the
clauses specified in Section 55 of the Act. if read in their entirety. would give
rise to a construction that the act of possession is involved in each one of
the activities mentioned in the clauses specified therein .

12. A penal statute although is required to be construed strictly and a D
potential offence would be presumed to be non-existing, the rule of purposive
construction in a case of this nature and, in particular, in the matter of
possessoin of the articles which have expressly been prohibited, came up for
consideration before this court in Indian Handicrafts Emporium & Ors. v.
Union ofIndia & Ors. (2003] 7 SCC 589, wherein it was categorically held that
when the statutory provisions are clear and unambiguous, the same should E
be given its due effect without taking recourse to any technical plea. The
same principle was reiterated in Balaram Kumawat v. Union of India & Ors.,
(2003] 7 sec 628:

"26. The courts will therefore reject that construction which will defeat F
the plain intention of the legislature even though there may be some
inexactitude in the language used. (See Salmon v. Duncombe. (1886)
11 AC 627). Reducing the legislature futility shall be avoided and in
a case where the intention of the legislature cannot be given effect
to, the courts would accept the bolder construction forthe purpose of
bringing about an effective result. The courts, when rule of purposive G
construuction is gaining momentum, should be very relucant to hold
that Parliament has achieved nothing by the language it used when
it is tolerably plain what it seeks to achieve. [See BBC Enterprises v.
Hi-Tech Xtravision Ltd. Ltd. [ 1990] 2 All ER 118]."

H
1048 SUPREME COURT REPORTS [2007] 3 S.C.R.

A 13. Indisputably, where possession of a forbidden article constitutes an
offence, the prosecution is duty bound to prove the ingredients therefor. ~
Existence of mens rea. however, would be a question which has to be
detennined having regard to the. provision of the statute.

14. In Jnder Sain (supra). whereupo the learned counsel placed strong
B reliance, the appellant therein recieved a consignment of a parcel of apples
from one Uchana Das of Solan and he never had any occassion to know that
therein some opium was kept. Existence of opium in the said parcel of apples
was established only upon chemical examination. It was in the aforementioned
premises, this Court held that as the expression "possess" was not crystal .~

c clear in the provisions of the Opium Act, it was necessary for the prosecution
to show that the accused had the article which turned out to be opium,
stating:

"In other words, the prosecution must prove that the accused was
knowingly in control of something in circumstances which showed
D that he was assenting to being in control of it."

15. What was emphasised was that sonscious possession of the accused
was necessary for the purpose of establishing the guilt.

16. The decision of this Court in Ram Rattan (supra), was to the same
E effect as, in that case, the prosecution failed to establish that the appellant
was in conscious possession of the opium recovered from his house. We do
not find that, in the Opium Act. there exists any pari materia provision like
Section 64 of the Abkari Act. where the burden of proof was upon the
accused to establish the foundation of the charge. Indisputably, thus, it was
for the accused to prove the same. Section 106 of the Evidence Act also is
F a clear pointer to show that whoever has any special knowledge of fact, onus
of proof in respect thereof would be on him.

17. Learned counsel would submit that the offence having been commited
in the year 1989 and the same being coinpoundable in nature at the relevant
point of time, leniency m.ay be shown by this Court in the mater of quantum
G of sentence. We are not inclined to do so.

18. This appeal is, therefore, dismissed. ~
-
-

S.K.S. Appeal dismissed.