High Court Kerala High Court

Rajeev vs The Excise Inspector on 29 June, 2009

Kerala High Court
Rajeev vs The Excise Inspector on 29 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 891 of 2003()


1. RAJEEV, S/O.KUNJITTY, URAKAM.
                      ...  Petitioner

                        Vs



1. THE EXCISE INSPECTOR, CHERPU RANGE,
                       ...       Respondent

                For Petitioner  :SRI.C.A.CHACKO

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :29/06/2009

 O R D E R
                        M.N. KRISHNAN, J.
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                  Crl. Appeal NO. 891      OF 2009
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           Dated this the 29th day of June, 2009.

                         J U D G M E N T

This appeal is preferred against the conviction and

sentence passed by the 3rd Addl. Sessions Judge, (Adhoc), Fast

Tract Court-I, Thrissur in S.C.196/02. The accused was found

guilty u/s 58 of the Abkari Act and was sentenced to undergo

rigorous imprisonment for a period of one year and to pay a

fine of Rs.1,00,000/- and in default to undergo rigorous

imprisonment for three months u/s 58 of the Abkari Act.

2. It is the case of the prosecution that on 16.10.99 at

about 10.15 a.m. on the western side of the Siva Temple in

Oorakam village the accused was found in possession of 10

liters of toddy kept in a jerry can in a plastic bag. It was being

carried in a cycle. On seeing the officials there was a

perplexion on his face. He was intercepted and searched and

it was found that Can contained toddy of 10 liters. In a 650

ml. bottle 500 ml of toddy was taken as sample thereafter the

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accused was arrested later produced before Court and the

sample was forwarded to the Chemical Analysis Laboratory. It

was found it contained percentage of 8.61% by volume of

ethyl alcohol . The court on analysis of evidence of PWs.1 to 3

and 5 arrived at a decision that the accused has committed

offence u/s 58 of the Abkari Act and convicted him thereunder.

It is against that decision the appeal has been preferred.

3. The learned counsel for the appellant would contend

that the accused is admittedly a toddy tapper and he was

proceeding to measure the toddy and at that time the police

had intercepted and therefore it is not proper to convict him.

But according to the learned Prosecutor, the accused has no

such case at all and his case is that of a total denial.

4. PW1 is the Excise Inspector who had detected the

case. He had deposed in line with the case of the prosecution.

It is also stated by him that the accused was a toddy tapper in

Shop No.9. He also speaks about the sampling and sealing

and also about the various processes including sending it for

chemical analysis. Though he had been cross examined at

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length nothing has been brought to discredit his evidence. It

is also brought out in evidence that the Excise Inspector had a

talk with the Manager of the shop. PW3 is the police officer

who had accompanied PW1. He had also spoken about the

search and seizure of the toddy in accordance with the

evidence of PW1. PW4 is the store manager. He would say

that he cannot say whether the accused was measuring toddy

in his shop. According to him the toddy is measured between

8 a.m. and 10 a.m. and the outer limit is 10.10 a.m. It is also

deposed by him that accused used to measure toddy. There is

no case for the accused that he was proceeding to measure

the toddy in the shop. His case is that of a total denial.

Therefore one cannot hold that the evidence is in that

direction. The accused was caught hold of by the Excise

Officials for possessing toddy which runs to about 10 liters.

He had no proper explanation. If he was really measuring

toddy in that particular shop he could have produced some

documents to establish the same for the reason that when one

admits possession it is for him to prove the nature of

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possession. As stated by me earlier there is no contention for

the accused that he was in possession of any toddy. So this

argument at this stage cannot be accepted. Then the evidence

of PWs.1 to 3 and 4 would make it clear that toddy was taken

from him. It contains 8.61% by volume of ethyl alcohol. He

was having toddy in a cycle which will show that possession

was only conscious possession. So one cannot hold that S.58

of the Abkari Act is not attracted. Therefore I hold that this

Court cannot interfere with the finding of guilt u/s 58 of the

Abkari Act.

5. Now turning to the question of sentence, it has to

be stated that he is a toddy tapper by profession and toddy

was found to be in possession. He had a large family to be

looked after. Though the offence comes under the ambit of

Section 58 of the Abkari Act, in these types of cases the

Courts are expected to take some leniency for the reason that

the possession was only that of toddy which is a permitted

liquid and being a toddy tapper by possession he deserves

sympathy. I feel the interest of justice can be met by

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reducing the sentence of imprisonment to a period of one

month u/s 58 of the Abkari Act and to pay a fine of

Rs.1,00,000/- in default of which he shall undergo simple

imprisonment for a further period of 15 days.

In the result the appeal is disposed of as follows.

(1) The finding of guilt u/s 58 of the Abkari Act is

confirmed.

(2) The sentence is modified and the accused is

directed to undergo simple imprisonment for a period of one

month and to pay a fine of Rs.1,00,000/- and on default he

has to undergo simple imprisonment for 15 days.

(4) He is entitled to set off u/s 428 Cr.P.C.

(5) The lower Court shall execute the sentence.

M.N. KRISHNAN, JUDGE.

ul/-

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M.N. KRISHNAN, J.

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Crl.A. No. 891 OF 2003
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J U D G M E N T

29th June, 2009