The Kerala High Court in the case Jolly Vaerghese v. State of Kerala observed and has held that the sale of liquor which ought to be made in praesenti in order to attract the offence as it has been stated under Section 55(i) of the Kerala Abkari Act.
The court in the case observed that it has been stated under section 55(i) of the Act that the person who sells or stores for sales liquor or any intoxicating drug in contravention of the Act or any Rule or Order which is made under the Act and the same shall be punished.
The bench headed by Justice V.G. Arun in the case observed while considering of an anticipatory bail application of the petitioner-accused who had been found in possession of 2.75 litres of the Indian Made Foreign Liquor.
The court in the case observed that it being the prima facie merit in the contention that mere possession of the Indian Made Foreign Liquour, IMFL that too being within the permissible limits and the same cannot lead to a presumption that the liquor was intended for sale. Thus, the sale should be in presenti, for the offence as it has been stated under Section 55(i) which is to be attracted.
Adding to it, the court stated that the same would be a matter which is to be decided by the Trial Court.
Therefore, it has also been alleged before the court by the prosecution against the petitioner was that the said amount of IMFL had been intended for sale, and that the said petitioner had run away from the spot on seeing of the excise party.
The counsel, Advocates Sruthy N. Bhat and Nikita J. Mendez contended before the court which being on behalf of the petitioner that even if the prosecution allegation was accepted in its entirety, no offence as stated under Section 55(i) could be made out against the petitioner since there was nothing in order to indicate that the petitioner had indulged in sale of liquor. Further, it has been submitted before the court that the amount of liquor wherein it is allegedly recovered from the petitioner was also within the limits which are permissible.
It has also been argued by the counsel, Senior Public Prosecutor Vipin Narayan that the petitioner was earlier also implicated in a crime wherein it alleged commis commission of offence as it has been stated under Section 55(a) of the Kerala Abkari Act.
Therefore, the court in this context ascertained there being the 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 the sale.
The court in the case observed and has stated that the petitioner in the plea shall surrender before the investigating officer within the period of two weeks. On surrender, the petitioner shall be interrogated and produced before the jurisdictional court on the same day. Thus, the petitioner being liberty in order 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, which being preferably on the same day.
Accordingly, the court disposed of the anticipatory bail plea.