IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2137 of 2008()
1. POTTANKI DAMU, AGED 58 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.U.SHAILAJAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.2137 OF 2008
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Dated this the 7th day of July, 2009
JUDGMENT
This is an appeal preferred against the conviction and
sentence passed in S.C.No.57/2007 of the Additional Sessions
Judge (Adhoc-II), Thalassery. The accused was charge sheeted
for an offence under Section 55(g) of the Abkari Act and was
convicted there under and sentenced to undergo S.I. for one
year and to pay a fine of Rs. One lakh and in default, to
undergo S.I for six months. Set off was allowed under Section
428 of the Cr.P.C. It is against that decision, the accused has
come up in appeal.
2. The points that arise for determination in the appeal
are (1) whether the conviction under Section 55(g) of the
Abkari Act is sustainable (2) In case of guilt, whether the
punishment awarded is excessive.
3. It is the case of the prosecution that on 10.9.2005 at
about 2 p.m, the accused was found in possession of 100 liters
of wash kept in three plastic containers intended for distillation
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of illicit arrack and therefore, he was apprehended, sample
was taken, produced before the court, analysed and found
that it contained percentage of ethyl alcohol. The person,
who had detected the offence, is examined as PW3 in the case.
It is stated by him that, he was informed that distillation of
arrack was going on in the residential compound of the accused.
They proceeded to the place and saw the accused stirring
something in a nearby plantation and therefore they approached
him. He was found in a sitting position and the officials were
able to see the three plastic cans with its top portion cut off
having earthed in three nearby pits. The accused was
interrogated, sample was taken from the contraband wash and
the balance was destroyed. The sample was produced before
the court on 12.9.2005 and sent for chemical examination.
The chemical analyst’s report would reveal that it contained
11.68% by volume of ethyl alcohol.
4. Pw2 is another police constable, who had
accompanied PW3. He admitted the presence of the accused
and that the accused was seen stirring something in a vessel
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and that wash has been kept in three Cans in three pits. So,
the evidence of Pws 2 and 3 would reveal that the accused
was found stirring a liquid and that he was preserving three
Cans of wash in plastic containers and that on detection
sample was taken and sent for examination and it had been
revealed that the sample contained percentage of ethyl
alcohol. The court also had considered the fact that there
was no much delay in producing the wash before the court as
well. The learned counsel would argue before me that though
it is stated about three plastic Cans, it is not produced before
the court. The explanation tendered by the officials is to
the effect that it was got damaged on account of the lapse of
time. It has to be stated that the evidence of Pws 2 and 3
established the factum of wash being stirred by the accused.
The sample was taken in a sealed bottle and it was sent for
chemical analysis which revealed that the sample was intact and
it contained the percentage of volume of ethyl alcohol. So,
the evidence is quite convincing to hold that the accused was
found in possession of wash for which he did not have any
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proper explanation.
5. Therefore, the conviction under Section 55(g) of the
Abkari Act cannot be found fault with and therefore it is
suspended. So far as the sentence is concerned, the learned
counsel would contend that he is aged more than 58 and
he has a family to be looked after and he is in a very
difficult situation and that is why he was only able to deposit
a sum of Rs.2,000/=, when this Court ordered to deposit 20%
of the fine. It has to be stated that he had only deposited
Rs.2,000/= and that, is undergoing imprisonment from
11.3.2009 itself after getting surrendered himself before the
court.
6. So, taking into consideration the totality of the
circumstances, I feel, some leniency can be shown with respect
to the sentence. The punishment for the offence under Section
55(g) can be six months S.I with a fine of Rs. One lakh and
in default, to undergo imprisonment for one more month.
The penalty amount, which was already deposited by him by
way of fine, shall be credited to the governmental account as
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receipt of fine of Rs.2,000/=.
7. In the result, the criminal appeal is disposed of as
follows:
(1). The finding of guilt under Section 55(g) of the Abkari
Act is confirmed.
(2) The sentence is modified and the accused is sentenced
to undergo S.I for six months and to pay a fine of Rs. One
lakh and in default of which, he shall undergo further
imprisonment for a period of one month. The amount of
Rs.2,000/= already deposited by him shall be credited to the
governmental account as part of the fine and that fact also
had been taken into consideration for reducing the default
sentence. If the accused is already in jail, he shall undergo
the sentence otherwise, the lower court shall execute the
sentence.
M.N. KRISHNAN, JUDGE
cl
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