IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 976 of 2007(B)
1. ITHAPIRI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :ADV.R.V.SUJIT KUMAR(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :26/07/2007
O R D E R
K.Thankappan, J.
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Crl. A. No. 976 of 2007
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Dated this the 26th day of July, 2007
JUDMENT
Appellant, an aged man of 70 years, faced trial for offence
punishable under section 55(g) of the the Abkari Act on the allegation that
he was found in possession of 45 litres of wash. To prove the charge
against the appellant, the prosecution examined PWs.1 to 5 and produced
Exts.P1 to P9. The trial court accepted the sole evidence of PW4 Excise
Inspector who detected the offence and found that the appellant guilty of
offence punishable under section 55(g) of the Abkari Act. PW4 stated that
on 20-8-2003 at 5 P.M. while he was on patrol duty, he got information that
the appellant was possessing wash in his house for distillation of arrack. He
proceeded to the house of the appellant and searched the house. A 30 litre
pot and a 15 litre can were found in the kitchen and on examination it was
found that the can and the post contained 45 litres of wash. PW4 arrested
the appellant, seized the wash and registered the crime. The case was
investigated and charge was laid before the court. After closing the
evidence, the appellant was questioned under section 313 of Cr.P.C. He
denied the allegation and stated that MOs.1 and 2 were not seized from the
house and the above material objects were taken from nearby estate and
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the case was foisted against him by the Excise party. Relying on the
evidence adduced by the prosecution both, oral and documentary, the trial
court found the appellant guilty under section 55(g)of the the Abkari Act
and he was convicted thereunder and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,00,000/- and in
default to undergo rigorous imprisonment for three months. The
conviction and sentence awarded against the appellant are assailed in this
appeal.
2. Since the appeal has been filed through the jail authorities and no
counsel has been engaged to defend the case of the appellant, this Court
appointed a member of State Brief panel to defend the case of the appellant.
3. This Court heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. Learned counsel for the appellant submits that the trial court has
committed serious error in finding the appellant guilty under section 55(g)
of the Abkari Act on the basis of the evidence of PW4, as there was no
independent evidence to support the evidence of PW4. The learned counsel
also submits that the evidence of PW4 is not enough to prove that the
appellant was found in possession of the contraband article, as the definite
case of PWs.1 and 2, independent witnesses, was that they had not seen any
Crl.A.976/2007 3
contraband article seized from the house of the appellant and they had stated
that they signed the paper as directed by the excise men. It is submitted that
even if the evidence of PW4 is accepted, the finding of the trial court that
the appellant had committed an offence punishable under section 55(g) of
the Abkari Act is not justifiable, as the prosecution had not proved the wash
kept by the appellant is for preparation of arrack.
5. The trial court had considered the evidence of PW4 and found
that the prosecution had succeeded in proving that the appellant committed
an offence punishable under section 55(g) of the Abkari Act. As per Ext.P9
chemical analysis report, the first sample contained 4.78% ethyle alcohol
and the second sample contained 8.65 ethyle alcohol by volume. PWs.1 and
2 stated that they did not see excise men searching the house of the
appellant, seizing wash and arresting the appellant. The evidence of PW1
shows that he signed Ext.P1 at Padikappu at the request of the excise
officials. The evidence of PW2 shows that he signed Ext.P1 at his shop. In
this context, it is relevant to note that in Ext.P1 mahazar names of four
excise officials were mentioned, but non of them was examined. It has come
out in evidence that other persons were residing nearby or conducting
shops nearby, but they were not made witnesses. Apart from the above, it
is seen that there was no material other than MOs.1 and 2 to prove that the
Crl.A.976/2007 4
wash was kept for preparation of arrack. The case set up by the appellant is
that the the material objects were taken from a nearby estate and the case
was foisted against him. For conducting a search in the house, it is
obligatory on the part of the authorized officer to comply with section 31 of
the Abkari Act. There is no evidence to show that the above procedure was
complied with by PW4. The prosecution case is that the appellant was
found in possession of 45 litres of wash for the purpose of distillation of
arrack and the same was stored in the house. The prosecution must allege
and prove that the wash was kept for the purpose of manufacturing liquor.
In this context, there is no evidence to show that the wash was kept for the
purpose of manufacturing liquor. In the above circumstances, this Court is
of the view that the finding of the trial court that the appellant had
committed an offence under section 55(g) of the Act is not sustainable. In a
decision reported in Sudhepan @ Aniyan V. State of Kerala (2005(2) KLT
(Cri) 631) this Court held that to attract an offence under section 55(a) of
the the Abkari Act, the prosecution must allege and prove that possession of
the contraband liquor was incidental or in connection with export, import,
transport or transit of liquor. Therefore, the finding of the trial court that
the appellant found guilty under section 55(g) of the Abkari Act is not
sustainable.
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6. In the above circumstances, the conviction and sentence awarded
against the appellant/accused in S.C.No.531/2005 on the file of the Court of
the Addl. Sessions Judge (Adhoc)-II, Thodupuzha are set aside and the
appellant is acquitted. Hence, the appellant shall be released forthwith
unless required in any other case.
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A. No. 976/2007
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Judgment
26-7-2007