IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 964 of 2002()
1. SASI, S/O.SREEDHARAN, AGED 42 YEARS,
... Petitioner
2. MATHEW, S/O.JOSEPH, AGED 37 YEARS,
3. JOSE S/O.JOSEPH, AGED 42 YEARS,
4. JOSE S/O.THOMAS, AGED 41 YEARS,
5. VIJAYAN, S/O.KUNHIKANNAN, AGED 39 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.VINOD VALLIKAPPAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.M.JAMES
Dated :21/02/2007
O R D E R
J.M.JAMES, J.
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Crl.A No. 964 of 2002
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Dated this the 21st day of February, 2007
J U D G M E N T
The accused, five in number, though were charged
with the offence punishable under Section 55(a), 55(b) and
55(g) of the Abkari Act, in short the Act, they were acquitted of
all the charges, except Section 55(g) of the Act. Therefore, all
the accused were found guilty of the offence punishable under
Section 55(g) of the Act, convicted and sentenced thereunder to
undergo rigorous imprisonment for five years each and to pay a
fine of rupees one lakh each, in default of which to undergo
simple imprisonment for a further period of nine months. The
said conviction and sentence are under challenge through this
appeal.
2. The brief facts required for the disposal of this
appeal are that on 18/04/1998, PW.2, the Sub Inspector of
Peruvannamuzhi Police Station, along with PW.3 and others,
were on duty. On information that illicit brewing of arrack was
going on at Pakshikkunnu island, which is under the forest
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department, the police party proceeded towards the isolated
island, where the illicit brewing was going on. On seeing the
police party, the accused-appellants threw away the apparatus
and appliances used for the said purpose, jumped into the river,
swam and escaped. The police party, under PW.2, inspected the
premises and found nearly 3000 litres of wash, stored in
kannases, tea boxes etc. together with nearly 10 litres of arrack.
The other articles and apparatus, which could be used for the
purpose of manufacturing of arrack, were also found. After
preparing Exhibit P3 seizure mahazar and Exhibit P1 scene
mahazar, the police party returned to the police station, with the
material objects. Exhibit P6 is the First Information Statement
and Exhibit P6(a) is the First Information Report, registered
under Section 55(a), (b) and (g) of the Act. Though the
appellants had jumped into the river, swam and escaped from
the place of occurrence, PW.3, the Assistant Sub Inspector of
Police, who was with PW.2, had identified the accused. Hence,
the final report was accordingly filed by PW.2, on completion of
the investigation, which was conducted by PW.6, the Sub
Inspector of Perambra Police Station.
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3. The prosecution examined six witnesses and
marked eight documents. Six material objects were also marked
and identified.
4. Though the court framed the charge under
Section 55(a), (b) and (g) of the Act, on appreciation of the
evidence, the court below came to the finding that there is no
clear evidence to hold that the appellants committed the offence
under Section 55(a) and (b) of the Act. Therefore, all of them
were acquitted thereunder. However, considering that the
evidence is sufficient to hold that the accused committed the
offence punishable under Section 55(g) of the Act, they were
convicted and sentenced thereunder.
5. Section 55(g) of the Act is reproduced below:-
“55. Whoever in contravention of this Act
or of any rule or order made under this Act
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(e) xxxx
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(f) xxxx
(g) uses, keeps, or has in his possession any
materials, still, utensil, implement or
apparatus whatsoever for the purpose of
manufacturing liquor other than toddy or
any intoxicating drug; or
(h) xxxx
(i) xxxx
shall be punished xxxx”
6. The prosecution had produced six material
objects. The evidence of PWs.1, 3 and 6 clearly show that these
material objects were seized from the place of occurrence.
Though PWs.1 and 2 had turned hostile, Exhibit P3 seizure
mahazar reveals the seizure of the material objects from the
place of occurrence, MO.6 being a white kannas, with arrack.
7. The learned counsel appearing for the appellant
submitted that as possession of the materials stated in Section
55(a) and (b) of the Act were found to be not proved by the
prosecution against the appellants, the conviction under Section
55(g) of the Act also is not sustainable.
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8. Mere possession of liquor or intoxicating drug,
in contravention of the Act, or manufacturing of liquor or
intoxicating drug, are covered under Section 55(a) and 55(b) of
the Act. On the other hand, as quoted above, Section 55(g) of
the Act is very extensive and the possession of any materials,
still, apparatus, utensil, implement and whatsoever, for the
purpose of manufacturing liquor, is sufficient to attract the
offence thereunder. The material objects seized and produced in
this case are materials which are used for manufacturing liquor.
MO.6 kannas had arrack in it. But as the possession of the same
was not fastened on the appellants, the court did not convict
them under Section 55(a) of the Act. However, the act alleged
against the appellant, under Section 55(g) of the Act, is clearly
proved. Therefore, for the reason that Section 55(a) and 55(b) of
the Act were found not proved, Section 55(g) of the Act cannot
be brushed aside.
9. The learned counsel for the appellant further
contended that there is no materials to show that the accused
had been identified by any of the witnesses. PW.3 is the
Assistant Sub Inspector of Police of the same station, who
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accompanied PW.2 and others, in the boat of the irrigation
department, to the place of occurrence. He had clearly
identified the appellants. PW.2 also spoke of the jumping and
escaping by the appellants from the place of occurrence. The
investigation of PW.6 further revealed that the appellants were
involved in illicit distillation and they escaped from the place of
occurrence after throwing away the apparatus and implements
into the river. Therefore, no further identification is necessary
in this case.
10. Learned counsel further submitted that even
though the police party was in a boat of the irrigation
department, they did not pursue the appellants, who jumped into
the river in their bid to escape from the place of occurrence.
PW.2 had been questioned on that point; so also were the other
witnesses. PW.2 deposed that the boat was tied to a distant
place on an another side of the bank of the tiny island, where the
illicit brewing was going on. The police could not reach back
the boat and chase the appellants.
11. The learned Public Prosecutor submitted that
because of the marshy area it was not possible for the boat to be
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driven through the places where the appellants escaped. The
appellants were very familiar with the terrain of the area, as well
as the differences in the depth of the water in the river.
12. When the prosecution established that it was the
accused-appellants who did the criminal act, the mere inaction
on the part of the police in not chasing the appellants, cannot be
found to be a lapse on the prosecution. Therefore, I am unable
to accept the contention of the learned counsel for the appellant
in that regard.
13. The evidence adduced by the prosecution clearly
show that the appellants were engaged in manufacturing of
illicit liquor in an isolated island. It is a forest area. PW.2
deposed that the police party could identify the location only on
seeing the smoke coming out of the area. When they reached
the place of occurrence, the appellants escaped, by jumping into
the river. As the boat was on the other side of the island, they
could not immediately chase them.
14. The counsel for the appellants were at pains to
explain that the distance to the main land, from the place of
occurrence, was 11/ kms. Therefore, a chase must have been
2
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successful and the accused could have been arrested. PW.2 and
others explain that as the boat was stationed at a distant place of
the island and the appellants were proficient enough with the
terrain, taking advantage of the depth differences in the river,
they escaped. Therefore, there was no chance in pursuing the
appellants, with the boat.
15. After appreciating the evidence, that are
available on record, I do not find that I have to doubt the
versions of the prosecution witnesses, in not chasing the
accused, when they jumped into the river. When I appreciate
the entire evidence, I find that the prosecution has established
the offence under Section 55(g) of the Act. Therefore, the
conviction entered into by the learned Additional Sessions Judge,
Fast Track, (Ad hoc-I), Kozhikode, in Sessions Case
No.329/1999, on the file of that court, is hereby sustained.
16. The learned counsel for the appellants, however,
submits that the sentence of imprisonment for five years and a
fine of rupees one lakh each, is highly excessive, and
disproportionate to the criminal act proved against them.
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17. After hearing the counsel for the appellants as
well as the learned Public Prosecutor, and taking into account
the circumstances of this case, I reduce the sentence from
rigorous imprisonment for five years to rigorous imprisonment
for one year each. However, I sustain the fine amount of rupees
one lakh each. The default sentence, is reduced to simple
imprisonment for six months each.
In the result, the appeal is allowed in part. The
learned Sessions Judge is directed to issue modified warrants to
the appellants, reducing the sentence of imprisonment to
rigorous imprisonment for one year each, and the default
sentence of fine being six months each, as above.
(J.M.JAMES)
Judge
ms
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J.M.JAMES, J.
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Crl.A No. 964 of 2002
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J U D G M E N T
21st February, 2007