Rajappan vs The Excise Inspector on 3 April, 2009

Kerala High Court
Rajappan vs The Excise Inspector on 3 April, 2009




Crl.Rev.Pet.No. 542 of 2002()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  :PUBLIC PROSECUTOR


 Dated :03/04/2009

 O R D E R
                   S.S. SATHEESACHANDRAN, J.
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                         Crl.R.P.No.542 of 2002
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                          Dated: 3rd April, 2009


The challenge in the revision is against the concurrent verdict of

guilty rendered against the revision petitioner/accused for the offence

under Section 55(g) of the Abkari Act (for short ‘the Act’). The

learned Magistrate, after trial, negativing the plea of not guilty raised

by the accused, found him guilty and he was thereupon convicted and

sentenced to undergo rigorous imprisonment for six months and to

pay a fine of Rs.1000/- with default term of simple imprisonment for

three months. In appeal, the learned Additional Sessions Judge

upheld the conviction and sentence without any modification.

Aggrieved by the conviction and sentence, impeaching its

correctness, the accused has preferred this revision.

2. The gist of the prosecution case is that the excise party

headed by P.W.1 at about 1.30 P.M. on 6.1.1996 found the accused

carrying a jerry can containing 15 liters of wash beside a public

pathway, within the limits of Kuttanadu Excise Range. The sample

was collected from the contraband and sealed at the spot and Ext.P1

mahazar was prepared over the seizure of the contraband. Accused

arrested was later enlarged on bail. P.W.5, the Excise Inspector,

Crl.R.P.No.542/02 – 2 –

Kuttanadu Range, after completing the investigation of the crime

registered over the seizure laid the report before the court indicting

the accused for the offence punishable under Section 55(g) of the


3. The accused pleaded not guilty to the charge levelled.

Prosecution examined P.Ws.1 to 5, got marked Exts.P1 to P4 and

identified M.O.1 to prove its case. When questioned under Section

313 Cr.P.C., the accused reiterating his plea of innocence advanced a

defence that a jaggery solution prepared and kept at his house for

making sweets was collected in a jerry can by the excise party who

conducted raid over his house at the instance of one Baby, employed

in the excise department, who was on inimical terms with him.

Setting up such a defence, the accused examined two witnesses as

D.Ws.1 and 2. The learned Magistrate, after appreciating the

materials produced found the accused guilty of the offence charged

and he was convicted and sentenced, which was confirmed by the

learned Sessions Judge in appeal, as already indicated.

4. I heard the learned counsel for the revision petitioner and

also the learned Public Prosecutor.

5. The conviction of the accused for the offence under Section

55(g) of the Act is challenged by the counsel advancing an argument

Crl.R.P.No.542/02 – 3 –

that wash would not come within the definition of liquor. Though such

a line of attack was canvassed in fairness to the counsel, it was not

pursued probably in view of the judicial pronouncements rendered by

this court time and again that wash containing small percentage of

alcohol is liquor and it squarely comes under “matter” or “material”

covered by Section 55(g) of the Act. But the main line of attack which

was pursued by the learned counsel to assail the conviction of the

accused was built on the premise that to sustain a charge under

Section 55(g) of the Act, it is not sufficient for the prosecution to

prove the possession of the matter or material, but, it should also

establish that such possession was “for the purpose of manufacturing

liquor other than toddy or any intoxicating drug”. So, in short, the

argument presented by the counsel was that mere proof of

possession of wash with the accused is incapable of bringing home

the guilt under Section 55(g) of the Act, it should be established that

he had kept such wash for the purpose of manufacturing liquor. I

cannot agree with the submission made by the learned counsel. In

Kittunny v. State of Kerala (1981 KLT (Sh.Notes) page 69(Case

No.124), this court has held that keeping or being in possession of

wash for distillation will come under Section 55(g) of the Act. No

burden is cast upon the prosecution once possession of the wash is

Crl.R.P.No.542/02 – 4 –

proved with the accused that he had kept such material with him for

the purpose of manufacturing liquor to sustain a conviction under

Section 55(g) of the Act against him. Once possession of the wash

with the accused is established by the prosecution, it is for him to

account for such possession that it was not for the purpose of

manufacture of liquor, but for some other justifiable purpose.

Presumption covered by Section 55 of the Act that it shall be

presumed until the contrary is proved that the accused who was

found with possession of the matter or material whatsoever for the

manufacture of liquor shall be deemed to have committed the offence

under the Act applies with full force. On the facts presented in the

case, even by the defence version set up by the accused, he has

practically conceded to the possession of the wash which was seized.

His version that seizure was from his house and it was only a

preparation of jaggery solution was found devoid of any merit by both

the courts below. The learned Magistrate found the evidence of

P.Ws.1 and 4, the excise officials, as regards the seizure of the wash

from the possession of the accused at a public place credible and

trustworthy. The learned Additional Sessions Judge, after

reappreciation of the evidence, approved the finding of the learned

Magistrate that the contraband was seized from the possession of the

Crl.R.P.No.542/02 – 5 –

accused as alleged by the prosecution. The analysis report prepared

over the sample exhibited as Ext.P4 disclosed that the sample

contained 3.65 % ethyl alcohol by volume, substantiating the case of

the prosecution that the contraband seized was wash. The evidence

of P.Ws.1 and 4, the excise officials, who had sufficient experience in

detecting and identifying ‘wash’ from other types of liquor also lend

assurance to conclude that the contraband seized from the accused

was wash falling within the material used for the purpose of

manufacturing liquor. The concurrent verdict of guilty passed against

the accused by the two courts below for the offence under Section 55

(g) of the Act is seen fully supported by the legal evidence tendered

in the case, and there is no merit in the revision challenging his

conviction. Sentence imposed by the learned Magistrate and

approved by the learned Sessions Judge in appeal is found to be not

excessive, but adequate commensurating with the gravity of the

offence proved against the accused. Sentence also, therefore, does

not call for any interference.

The revision is dismissed.

srd                           S.S. SATHEESACHANDRAN, JUDGE

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