IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.Rev.Pet.No. 542 of 2002() -------------------------------------------- CRA.NO.135/98 OF ADDL.SESSIONS COURT, ALAPPUZHA C.C.NO.122/96 OF JUDICIAL MAGISTRATE OF 1ST CLASS, RAMANKARI. .......... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- RAJAPPAN, S/O.KESAVAN,PALATHARA VEEDU, NEELAMPEROOR,KUTTANADU. BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE: -------------------------------------------------------------------------------------------- 1. THE EXCISE INSPECTOR,KUTTANAD RANGE. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON 3/04/2009 PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.3516/2002 IN CRRP.NO.542/2002 DISMISSED 3/04/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.542 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 3rd April, 2009 ORDER The challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence under Section 55(g) of the Abkari Act (for short 'the Act'). The learned Magistrate, after trial, negativing the plea of not guilty raised by the accused, found him guilty and he was thereupon convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- with default term of simple imprisonment for three months. In appeal, the learned Additional Sessions Judge upheld the conviction and sentence without any modification. Aggrieved by the conviction and sentence, impeaching its correctness, the accused has preferred this revision. 2. The gist of the prosecution case is that the excise party headed by P.W.1 at about 1.30 P.M. on 6.1.1996 found the accused carrying a jerry can containing 15 liters of wash beside a public pathway, within the limits of Kuttanadu Excise Range. The sample was collected from the contraband and sealed at the spot and Ext.P1 mahazar was prepared over the seizure of the contraband. Accused arrested was later enlarged on bail. P.W.5, the Excise Inspector, Crl.R.P.No.542/02 - 2 - Kuttanadu Range, after completing the investigation of the crime registered over the seizure laid the report before the court indicting the accused for the offence punishable under Section 55(g) of the Act. 3. The accused pleaded not guilty to the charge levelled. Prosecution examined P.Ws.1 to 5, got marked Exts.P1 to P4 and identified M.O.1 to prove its case. When questioned under Section 313 Cr.P.C., the accused reiterating his plea of innocence advanced a defence that a jaggery solution prepared and kept at his house for making sweets was collected in a jerry can by the excise party who conducted raid over his house at the instance of one Baby, employed in the excise department, who was on inimical terms with him. Setting up such a defence, the accused examined two witnesses as D.Ws.1 and 2. The learned Magistrate, after appreciating the materials produced found the accused guilty of the offence charged and he was convicted and sentenced, which was confirmed by the learned Sessions Judge in appeal, as already indicated. 4. I heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 5. The conviction of the accused for the offence under Section 55(g) of the Act is challenged by the counsel advancing an argument Crl.R.P.No.542/02 - 3 - that wash would not come within the definition of liquor. Though such a line of attack was canvassed in fairness to the counsel, it was not pursued probably in view of the judicial pronouncements rendered by this court time and again that wash containing small percentage of alcohol is liquor and it squarely comes under “matter” or “material” covered by Section 55(g) of the Act. But the main line of attack which was pursued by the learned counsel to assail the conviction of the accused was built on the premise that to sustain a charge under Section 55(g) of the Act, it is not sufficient for the prosecution to prove the possession of the matter or material, but, it should also establish that such possession was “for the purpose of manufacturing liquor other than toddy or any intoxicating drug”. So, in short, the argument presented by the counsel was that mere proof of possession of wash with the accused is incapable of bringing home the guilt under Section 55(g) of the Act, it should be established that he had kept such wash for the purpose of manufacturing liquor. I cannot agree with the submission made by the learned counsel. In Kittunny v. State of Kerala (1981 KLT (Sh.Notes) page 69(Case No.124), this court has held that keeping or being in possession of wash for distillation will come under Section 55(g) of the Act. No burden is cast upon the prosecution once possession of the wash is Crl.R.P.No.542/02 - 4 - proved with the accused that he had kept such material with him for the purpose of manufacturing liquor to sustain a conviction under Section 55(g) of the Act against him. Once possession of the wash with the accused is established by the prosecution, it is for him to account for such possession that it was not for the purpose of manufacture of liquor, but for some other justifiable purpose. Presumption covered by Section 55 of the Act that it shall be presumed until the contrary is proved that the accused who was found with possession of the matter or material whatsoever for the manufacture of liquor shall be deemed to have committed the offence under the Act applies with full force. On the facts presented in the case, even by the defence version set up by the accused, he has practically conceded to the possession of the wash which was seized. His version that seizure was from his house and it was only a preparation of jaggery solution was found devoid of any merit by both the courts below. The learned Magistrate found the evidence of P.Ws.1 and 4, the excise officials, as regards the seizure of the wash from the possession of the accused at a public place credible and trustworthy. The learned Additional Sessions Judge, after reappreciation of the evidence, approved the finding of the learned Magistrate that the contraband was seized from the possession of the Crl.R.P.No.542/02 - 5 - accused as alleged by the prosecution. The analysis report prepared over the sample exhibited as Ext.P4 disclosed that the sample contained 3.65 % ethyl alcohol by volume, substantiating the case of the prosecution that the contraband seized was wash. The evidence of P.Ws.1 and 4, the excise officials, who had sufficient experience in detecting and identifying 'wash' from other types of liquor also lend assurance to conclude that the contraband seized from the accused was wash falling within the material used for the purpose of manufacturing liquor. The concurrent verdict of guilty passed against the accused by the two courts below for the offence under Section 55 (g) of the Act is seen fully supported by the legal evidence tendered in the case, and there is no merit in the revision challenging his conviction. Sentence imposed by the learned Magistrate and approved by the learned Sessions Judge in appeal is found to be not excessive, but adequate commensurating with the gravity of the offence proved against the accused. Sentence also, therefore, does not call for any interference. The revision is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE