IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.A.No. 367 of 2003() ----------------------- SC.329/2000 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA .................... APPELLANT(S): ACCUSED NO.2: ------------------------------------------------- KURIAKOSE, S/O. MARKOSE, VETTATHUTHURUTHEL HOUSE, KARUMADI KARA, MARUMADI VILLAGE. BY ADVS. MR.V.V.RAJA, MR.M.T.SURESHKUMAR. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 367 OF 2003 = = = = = = = = = = = = = = = Dated this the 15th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-I, Thodupuzha in S.C.329/00. The 2nd accused alone was found guilty for the offence u/s 55(a) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to suffer further imprisonment for a period of three months. Accused Nos.1 and 3 were found not guilty and acquitted thereunder. It is the case of the prosecution that while the police officials on patrol duty they got the information that in the Thopramkudy Toddy shop TS.23/98-99 Indian Made Foreign Liquor was being sold and so they searched the shop and seized from the kitchen of the shop 48 bottles of Newmaster Brandy and each bottle contained 375 ml. of brandy. Accused Nos.2 and 3 are alleged to be the salesman and manager. The liquid seized was sealed and sent for Crl.A. No. 367 OF 2003 -:2:- chemical analysis which proved the presence of 40.75% by volume of ethyl alcohol. The Court below found that the evidence is lacking to connect A1 to A3 with the crime but found that A2 was also found to be in possession and therefore convicted him u/s 55(a) of the Abkari Act. It is against that decision the appeal is preferred. 2. The points that arise for determination are whether there is sufficient materials to hold that the 2nd accused was in possession of these 48 bottles of Indian Made Foreign Liquor and (2) Whether he is liable to be convicted thereunder. Points 1 and 2: 3. The learned counsel for the appellant had elaborately argued the matter and he had brought to my attention that though the alleged seizure was said to be done on 9.6.98 the articles reaches the court only on 24.6.98. According to him there is no sufficient evidence to prove the proper sampling and distilling. It is also contended by him that the status of the appellant was only that of a salesman in a Crl.A. No. 367 OF 2003 -:3:- toddy shop and the liquid was found in the kitchen of the today shop and therefore he cannot be saddled with the responsibility of possession of Indian Made Foreign Liquor found in the kitchen. There is tremendous force in the said argument. I am sorry to say that the attempt of the excise officials had not been very much proper. When Indian made foreign liquor is seized from the toddy shop ordinarily the primary responsibility has to be on the licensee of the shop or the manager of the shop. A salesman, after all he is a paid employee who is expected to be at beck and call of his masters. Unless there is concrete special evidence that without the knowledge of the owner or the manager the salesman had sold Indian Made Foreign Liquor it may not be proper for a court of law to convict the accused on the grounds that he was also found in the premises. It has to be borne in mind that admittedly it is a toddy shop. The officials who inspected and conducted the search and seizure had found that A2 selling toddy to the customers and A3 receiving money Crl.A. No. 367 OF 2003 -:4:- for the sale of toddy. They did not find the sale of Indian Made Foreign Liquor when they visited the property. They were only able to see that 48 bottles of Indian Made Foreign Liquor was stored in the kitchen of the toddy shop. There is a case for the defence that kitchen is totally separate from the toddy shop and it is not within the premises of the toddy shop. I think I need not go elaborately into those matters. I am convinced that none of the witnesses who had been examined in this case had spoken about the role of 2nd accused or his subsequent possession of Indian Made Foreign Liquor. As far as this case is concerned the court after elaborately considering the matter finds that there is no evidence to prove that A1 is the licensee and then reaches the conclusion that there is no evidence to connect the crime with the manager but how it found A2 alone is responsible for the finding of this Indian Made Foreign Liquor is not proper and I feel injustice had been meted out to a poor salesman in a toddy shop. In order to prove that A2 is guilty of the offence especially in the Crl.A. No. 367 OF 2003 -:5:- back drop that A1 and A3 are excluded from the purview of punishment of guilt one has to establish that A2 was found to be in exclusive possession having control and management over 48 bottles of Indian Made Foreign Liquor in the premises. Since he is only a salesman in a toddy shop one cannot attribute ownership on him. Since he is only a salesman in a toddy shop, his presence would not ipso facto show he was in possession of the foreign liquor. Just because the prosecution has failed to establish the case against A1 and A3 one cannot put the blame on A2. Therefore this is a case where it has to be held that the prosecution has not succeeded in proving that A2 was legally found to be in possession of Indian Made Foreign Liquor. Just because it was found in the premises where he was working one cannot find guilt on A2 for an offence u/s 55(a) of the Abkari Act. Since the fundamental thing is lacking, discussion on other points really does not arise and therefore I hold that the prosecution has failed to prove the offence alleged to have been committed u/s 55(a) of Crl.A. No. 367 OF 2003 -:6:- the Abkari Act. Without properly trying to find out who is the real person prosecution should not have been against a poor salesman of a toddy shop. I leave it there. In the result the appeal is allowed and the order of conviction passed u/s 55(a) of the Abkari Act against the 2nd accused is set aside. He is found not guilty of such offence and therefore he is acquitted and set at liberty forthwith M.N. KRISHNAN, JUDGE. ul/- Crl.A. No. 367 OF 2003 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 367 OF 2003 = = = = = = = = = = = J U D G M E N T 15th June, 2009