IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1889 of 2003() ----------------------------------- SC.587/2001 of III ADDL. SESSIONS (ADHOC) FAST TRACK COURT-I, THRISSUR .................... APPELLANT/ACCUSED --------------------------------- SURESH, S/O. VALIYAPARAMBIL MANIKUTTY, KUZHIKKATTUKONAM. BY ADV. MR.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM . BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1889 OF 2003 ------------------------------ Dated this the 6th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Third Additional Sessions Judge (Adhoc), Fast Track Court No.1, Trichur in S.C.No.587/2001. The accused was charge sheeted for an offence under Section 55(a) and after trial, he was convicted for the same and directed to undergo R.I for one year and to pay a fine of Rs.One lakh and in default, to undergo R.I for three months. He was also entitled to set off. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether an offence under Section 55(a) will lie (2) If not, whether it will be an offence punishable under any other section of the Abkari Act (3) Is there anything to interfere with the decision rendered by the court. 3. Points 1 and 2: For the sake of convenience, all the points are to be answered together. It is the case of the prosecution that on 2 CRL.A.NO.1889/03 18.3.1999 at about 6.20 p.m the accused was found transporting 5 liters of toddy in a 5 liter capacity jerry can and thereby has committed the offence under Section 55(a) of the Abkari Act. A perusal of the seizure mahazer itself would reveal that the accused was a substitute for a tapper by name Gopi and as Gopi was laid up, the accused had tapped the toddy and was proceeding. Though it is stated in the seizure mahazer that it was for sale, I do not find any further development in that direction by the prosecution. It is contended that the accused was in possession of 4.5 liters of toddy and therefore, he is punishable under Section 55(a) of the Abkari Act. 4. The learned counsel had drawn my attention to the decision of a Division Bench of this court reported in Mohanan v. State of Kerala (2007(1) KLT 845). It was a case where the facts would reveal that it related to toddy. In that particular case, the accused was caught hold of while he was transporting toddy in a bycycle. He was a tapper by profession. It is submitted that he was substituted for another tapper. He had also given evidence to that effect. This Court held that the offence would not come under Section 55(a) of 3 CRL.A.NO.1889/03 the Abkari Act and held that at the most it will come under Section 63 of the Abkari Act. In that decision, this Court held that in order to attract Section 55(a) “Section 55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing”. He was a substituted tapper even going by the case of the prosecution. So, at the most, it can be said that he was in possession of the toddy without proper explanation. Under law, a person is entitled to possess 2.5 liters of toddy. He has exceeded that quantity and when such is the situation, going by the decision rendered, only an offence under 63 is attracted. Even by accepting the entire prosecution case, the offence committed would be under Section 63. Therefore, I find that the conviction and sentence require interference and it is necessary to set aside the conviction under Section 55(a) and convict him under 63 of the Abkari Act. 5. Therefore, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55(a) and the sentence imposed are set aside. 4 CRL.A.NO.1889/03 2. The accused is found guilty under Section 63 of the Abkari Act and he is sentenced to pay a fine of Rs.3,000/= failing which, he shall undergo S.I for 6 weeks. If he does not pay the amount on or before 31.8.2009, the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.1889/03 6 CRL.A.NO.1889/03