IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.A.No. 658 of 2003() --------------------------------- SC.113/2002 of III ADDL. SESSIONS COURT, THRISSUR .................... APPELLANT/ACCUSED -------------------------------- SASEENDRAN, S/O. SURENDRAN, KOTTAM DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. MR.P.VIJAYA BHANU MR.TONY MATHEW RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 658 OF 2003 = = = = = = = = = = = = = = = Dated this the 13th day of August, 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, Thrissur in S.C.113/02. Accused was charged for the offences u/s 55(a) and (i) of the Abkari Act and he was found guilty u/s 55(a) and 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 further imprisonment for a period of three months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the accused can be convicted for the offence u/s 55(a) of the Abkari Act? (2) If not, whether he has committed any other offence under the provisions of the Abkari Act? (3) What will be the proper sentence? Crl. Appeal NO. 658 OF 2003 -:2:- Points: 3. All these points are answered together for the sake of convenience. Learned counsel for the appellant very strongly argued before me that the conviction u/s 55(a) cannot be sustained at all and even for a conviction u/s 63, the materials are lacking. It is the case of the prosecution that on 5.11.99 at about 11.30 a.m. the accused was found in possession of 5 litres of toddy in a 10 litre capacity can. He was apprehended, sample was taken later arrested and proceeded with. Before the trial court PWs.1 to 5 were examined and Exts.P1 to P10 and Mo1 were marked. 4. PW1 is the officer who had detected the case. He had deposed before Court how he proceeded and found the accused in possession of the can. According to him a blue can of 10 liter capacity was found and there was about 50% capacity liquid in it. The said liquid on smell and taste was found to be toddy. Thereafter 500 ml. of sample was taken in a 750 ml bottle and 5 gm. of Benzoic Acid powder was put and stirred. The Can was also sealed and the documents had been marked through him. He has been examined at length. He Crl. Appeal NO. 658 OF 2003 -:3:- does not know it is how far away from the place of seizure the accused was tapping the trees. He does not know to which shop the accused was measuring the toddy. By virtue of the provisions of the Act the permissible quantity that one can possess is 2½ litres. According to PW1 toddy has to be produced before the shop between 8 a.m. and 10 a.m for measurement. The accused was arrested with toddy at 11.30 a.m. It is also suggested that the liquor taken possession was less than two litres and it had been denied by PW1. 5. PW4 is another official witness who had been examined to prove the case of the prosecution. He had also deposed in line with PW1 and he had also stated in the chief examination that it was a 10 litre capacity Can and 500 ml sample was taken in 750 ml. bottle. Though he has been cross examined at length nothing is brought out to discredit his evidence. So the factum that the accused was found in possession of a Can with toddy is established in this case. 6. The first point which I will consider is regarding the prosecution u/s 55(a) of the Abkari Act. Admittedly the accused is a toddy tapper. He was only found to be in Crl. Appeal NO. 658 OF 2003 -:4:- possession of toddy. According to the prosecution it was 5 litres and according to the accused it is about 2 litres. According to the accused he was going to measure the toddy at that relevant time. S.55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally transporting. Here the accused was found in possession of toddy which is permitted liquor especially being a toddy tapper. As there was no illegal import, export, transport, or transit or he was in possession of liquor while illegally transporting, conviction u/s 55(a) cannot be sustained in this case. 7. The next question is which is the provision that will be attracted in this case. Now the learned counsel for the appellant very persuasively submitted before me that toddy being a permissible liquid and as there is no reliable evidence to show the actual quantity possessed is 2½ litres, a conviction cannot be had u/s 63 of the Abkari Act as well. It is true that the liquid has not been measured. But we have to take into consideration the circumstances and one shall not be too technical in such types of matters. There is no axe to Crl. Appeal NO. 658 OF 2003 -:5:- grind for the officials against the accused. Accused was found in possession of 10 litre can which was examined by PW1. It has also to be stated that sample had been taken from the Can. Necessarily one has to pour the toddy from the Can. 500 ml of toddy has been taken as sample. So one will have to state that officers can find out the approximate quantity of toddy. So if it is only 2 litres in a 10 litre can it will be only in the bottom most part of the can which can be easily be found out. It is true that the officials did not measure the toddy. MO1 is admittedly a Can of 10 litres capacity and by looking at Mo1 it is ascertained that the jerry Can contained half quantity of toddy, that means 5 litres which is well above the permissible quantity of 2 ½ litres. It has also to be remembered that at that point of time consideration was more u/s 55(a) rather than looking into it as per S.63 of the Abkari Act. Therefore I find the accused guilty u/s 63 of the Abkari Act and is convicted thereunder. Crl. Appeal NO. 658 OF 2003 -:6:- In the result the Crl.Appeal is disposed as follows: (1) The conviction and sentence passed by the learned Asst. Sessions Judge, Thrissur is set aside and I find that he is not guilty of the offence u/s 55(a) of the Abkari Act. (2) He is found guilty u/s 63 of the Abkari Act and he is convicted thereunder and sentenced to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for a period of two months. If he does not pay the fine on or before 15.10.2009, the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 658 OF 2003 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 658 OF 2003 = = = = = = = = = = = J U D G M E N T 13th August, 2009