IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 CRL.A.No. 360 of 2003() --------------------------------- SC.565/2001 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK-I THRISSUR .................... APPELLANT/ACCUSED: --------------------------------- SANKARANARAYANAN, S/O. CHIRIATH RAMAN, NATTIKA VILLAGE, DESOM IN THRISSUR DISTRICT. BY ADV. MR.U.O.JOSE RESPONDENT/COMPLAINANT: -------------------------------------------- THE EXCISE INSPECTOR, VATANAPPILLY RANGE IN THRISSUR DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 360 OF 2003 = = = = = = = = = = = = = = = Dated this the 17th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.565/01 of the 3rd Addl. Sessions Judge, Fast track Court-I, Thrissur. The accused was found guilty u/s 58 of the Abkari Act and was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of three months or the offence. Set off was allowed u/s 428 Cr.P.C. 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 the Court below was right in convicting the accused u/s 58 of the Abkari Act? (2) If not, whether he is liable to be punished under any other Section? Crl.A. 360 OF 2003 -2- (3) What shall be the quantum of punishment? Points: 3. In spite of posting the case on repeated days I do not get the assistance of the counsel for the appellant. Therefore I heard the Public Prosecutor and perused the records. It is the case of the prosecution that on 23.5.2000 at about 12 noon the accused was found in possession of 9 bottles of 750 ml each toddy kept in two packets. He was apprehended the toddy was seized it was opened and on smell and taste was found to be toddy and thereafter sample was taken and produced before Court as well. As usual PW2 and 3 had turned hostile. PW5 is the Excise Inspector of the Vadanappally range. PW1 is the person who had arrested the accused. Ext.P1 is the arrest memo. He had also prepared Ext.P2 seizure mahazar. He had given all the descriptions regarding the toddy and also of the sampling, sealing and labeling. Even the labels are marked as Ext.P11 series. PW4, the Preventive Officer wholly supported the case of the prosecution and a reading of evidence of official witnesses would establish that the accused was found to be in possession of 6.75 litres of toddy(nine bottles of 750 ml capacity each) Crl.A. 360 OF 2003 -3- and that the sample was properly taken and sealed and the chemical analyst report established that it contained 7.15% by volume of ethyl alcohol. Though some attempt is made to state that the scene of occurrence is not properly disclosed it is very clear that the scene of occurrence is the road leading to Iyyani temple from the S.N. College road, Nattika. Therefore the evidence available in this case fully establishes the fact that the accused was found in possession of 6.750 litres of toddy. 4. Now the next question is what will be the provision that can be made against him. Toddy is a permissible liquor and as per the Governmental notification one can carry 2.5 litres of toddy without any permit. It is true that carrying exceeding permissible limit is a violation of the provisions. S.58 of the Abkari Act envisages a situation that “whoever without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufacture, or knowing the duty, tax or rental payable under this Act not to have been paid therefor.” Crl.A. 360 OF 2003 -4- 5. Here, admittedly the possession of 2.5 litres of arrack is a permissible quantity. That possession must be knowingly that it was unlawfully imported, transported or manufactured. Here, there is no such import, transport, or manufacture so as to attract S.58 of the Abkari Act. The only provision that may be attracted is S.63 of the Abkari Act which deals with a situation that whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act, be punished with a fine of Rs.5,000/- or with imprisonment for a term which may extend to two years. This question was considered by a learned Judge of this Court in the decision reported in K.M. Aboobcker v. Station House Officer, Kumbla Police Station (2008 (1) KLJ 75. It was a case regarding possession of 8.46 litres of coconut fenny. Coconut fenny is included in the definition of Indian Made Foreign Liquor and there is a violation if one possess exceeding the quantity under Rule 11 of the Foreign Liquor Rules. In the case before me toddy is possessed in excess of the permissible quantity and therefore it will be S.63 of the Act that is attracted. Therefore I find the finding of guilt u/s 55 is liable Crl.A. 360 OF 2003 -5- to be set aside and he is to be found guilty u/s 63 of the Abkari Act and considering the fact that he should be more than 82 or 83 years at this point of time, justice can be met by imposing a fine of Rs.3,000/- and in default to undergo simple imprisonment for a period of two months. In the result the Crl.Appeal is disposed of as follows. (1) The finding of guilt, conviction and sentence passed u/s 58 of the Abkari Act is set aside. (2) The accused is found guilty u/s 63 of the Abkari Act and is sentenced to pay a fine of Rs.3,000/- and in default of payment of fine to undergo a simple imprisonment for a period of two months. (3) If the amount is not paid on or before 30.9.2009 the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 360 OF 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 360 OF 2003 = = = = = = = = = = = J U D G M E N T 17th July, 2009