IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH NOVEMBER, 2011 / 19TH KARTHIKA, 1933 CRL.A.No. 1784 of 2011 ------------------------------ (AGAINST THE JUDGMENT IN SC.560/2010 of THE ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM) .................... APPELLANT(S)/ACCUSED NO.1: -------------------------------------------- VINEESH, AGED 31 YEARS, S/O.PADMANABHAN, PATHIYAPARAMBU HOUSE, PAROOTHARA, N.PARAVUR, ERNAKULAM DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION, ERNAKULAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LOWSY.A. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1784 of 2011 ---------------------------------------- Dated this the 10th day of November, 2011 J U D G M E N T The first accused in S.C.No.560 of 2010 of the court of Additional Sessions Judge (Adhoc-II), Ernakulam is the appellant as he is aggrieved by the judgment dated 24.8.2011 in S.C.No.560 of 2010 of the trial court by which he is found guilty of the offence under Section 56(b) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for one month. 2. The case of the prosecution is that the appellant, who is the first accused, has conducted Toddy Shop No.5 in the building bearing No.IV/428C of Chengamanad Panchayat which was a building taken on rent and accused Nos.2 to 9 had manufactured illicit toddy which contained spirit in the said building while working under the appellant and thus, they had kept in possession of 4000 litres of CRL.A.NO.1784 of 2011 :-2-: spirit in two tanks of 3000 litres each,6650 litres of illicit toddy which contained spirit in five tanks of 2000 litres each and another tank of 500 litres without any licence. According to the prosecution, the said crime was detected by the Sub Inspector of Police at about 11.30 a.m. on 17.3.2009 in the aforesaid building at Kunnumpuram Desom and thus, the accused have committed the offences punishable under Sections 8(1),8(2),55(a),55(i) and 56(b) of the Abkari Act. During the trial of the case, to substantiate the case of the prosecution, PWs.1 to 25 were examined and Exts.P1 to P54 documents were produced. MO1 is the CD. There is no defence witness or defence exhibit. Finally, the trial court has found that the appellant/first accused has committed the offence punishable under Section 56(b) of the Abkari act and he is not guilty for the other offences and accordingly, he is acquitted of all the other offences and similarly, the other accused were also acquitted of all the charges levelled against them. It is the above findings, conviction and sentence of the appellant/first accused CRL.A.NO.1784 of 2011 :-3-: under Section 56(b) of the Abkari Act are challenged in this appeal. 3. When the above appeal came up for admission, this Court has already admitted the same on 13.10.2011 and suspended the execution of the sentence. Subsequently, the appellant moved an application i.e., Crl.M.A.No.8998 of 2011 under Section 482 of the Cr.P.C. and under Section 67A(2) of the Abkari Act, with a prayer directing the second respondent to compound the offence under Section 56(b). This Court, by order dated 20.10.2011 thereon disposed of the above petition, directing the second respondent to consider Annexure A and pass appropriate orders on merit in accordance with the procedure and law and he is also directed to file a report before this court on the basis of the outcome after due consideration of Anenxure A. Consequently, the Deputy Commissioner of Excise, Ernakulam has filed a report vide his proceedings No.E10-11475/11 dtd.27.10.2011 whereby it is reported that he had issued an order compounding the offence for which the CRL.A.NO.1784 of 2011 :-4-: appellant found guilty, in compliance of the order issued by this Court on 20.10.2011. It is further reported that the petitioner has remitted Rs.25,000/- being the compounding fee vide T.R.No.378 dated 27.10.2011 at Additional Sub Treasury,Ernakulam. Along with the above report, the order dated 27.10.2011 in E10-11475/11 is also produced. 4. In the light of the above referred order of the Deputy Commissioner of Excise, Ernakulam and in view of the report dated 27.10.2011 of the very same officer, it can be seen that the offence for which the appellant stands convicted and punished is compounded, who is the first accused in Crime No.570 of 2009 of the Nedumbassery Police Station. Having regard to the fact and considering the above report of the Deputy Commissioner of Excise, Ernakulam, the composition of the offence is recorded and accordingly, the remittance of the compounding fee of Rs.25,000/- is also recorded. In the light of the composition of the offence CRL.A.NO.1784 of 2011 :-5-: punishable under Section 56(b) of the Abkari Act, under Section 67 (A)(1) of the Abkari Act, the appellant is entitled to get an acquittal by virtue of Section 320(8) of the Cr.P.C. In the result, this appeal is allowed setting aside the judgment dated 24.8.2011 in S.C.No.560 of 2010 of the court of Additional Sessions Judge (Adhoc-II), Ernakulam and the appellant is acquitted for the offence punishable under Section 56(b) of the Abkari Act. The bail bond, if any, executed by the appellant shall stand cancelled and he is set at liberty. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1784 of 2011 :-6-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 CRL.A.NO.1784 of 2011 :-7-: JUDGMENT Dated:4.10.2011