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/-
Crl.A. No. 891 OF 2003
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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