IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 542 of 2002()
1. RAJAPPAN, S/O.KESAVAN,PALATHARA VEEDU,
... Petitioner
Vs
1. THE EXCISE INSPECTOR,KUTTANAD RANGE.
... Respondent
2. STATE OF KERALA REP.BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
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
ORDER
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
Act.
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
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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
