IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.A.No. 891 of 2003() -------------------------------- SC.196/2002 of III ADDL. SESSIONS COURT (ADHOC) (FAST TRACK COURT NO.I), THRISSUR .................... APPELLANT/ACCUSED --------------------------------- RAJEEV, S/O.KUNJITTY, URAKAM. BY ADV. MR.C.A.CHACKO SMT.C.M.CHARISMA RESPONDENT/COMPLAINANT ------------------------------------------ THE EXCISE INSPECTOR, CHERPU RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 891 OF 2009 = = = = = = = = = = = = = = = Dated this the 29th day of June, 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, (Adhoc), Fast Tract Court-I, Thrissur in S.C.196/02. The accused was found guilty u/s 58 of the Abkari Act and was 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 rigorous imprisonment for three months u/s 58 of the Abkari Act. 2. It is the case of the prosecution that on 16.10.99 at about 10.15 a.m. on the western side of the Siva Temple in Oorakam village the accused was found in possession of 10 liters of toddy kept in a jerry can in a plastic bag. It was being carried in a cycle. On seeing the officials there was a perplexion on his face. He was intercepted and searched and it was found that Can contained toddy of 10 liters. In a 650 ml. bottle 500 ml of toddy was taken as sample thereafter the Crl.A. No. 891 OF 2003 -:2:- accused was arrested later produced before Court and the sample was forwarded to the Chemical Analysis Laboratory. It was found it contained percentage of 8.61% by volume of ethyl alcohol . The court on analysis of evidence of PWs.1 to 3 and 5 arrived at a decision that the accused has committed offence u/s 58 of the Abkari Act and convicted him thereunder. It is against that decision the appeal has been preferred. 3. The learned counsel for the appellant would contend that the accused is admittedly a toddy tapper and he was proceeding to measure the toddy and at that time the police had intercepted and therefore it is not proper to convict him. But according to the learned Prosecutor, the accused has no such case at all and his case is that of a total denial. 4. PW1 is the Excise Inspector who had detected the case. He had deposed in line with the case of the prosecution. It is also stated by him that the accused was a toddy tapper in Shop No.9. He also speaks about the sampling and sealing and also about the various processes including sending it for chemical analysis. Though he had been cross examined at Crl.A. No. 891 OF 2003 -:3:- length nothing has been brought to discredit his evidence. It is also brought out in evidence that the Excise Inspector had a talk with the Manager of the shop. PW3 is the police officer who had accompanied PW1. He had also spoken about the search and seizure of the toddy in accordance with the evidence of PW1. PW4 is the store manager. He would say that he cannot say whether the accused was measuring toddy in his shop. According to him the toddy is measured between 8 a.m. and 10 a.m. and the outer limit is 10.10 a.m. It is also deposed by him that accused used to measure toddy. There is no case for the accused that he was proceeding to measure the toddy in the shop. His case is that of a total denial. Therefore one cannot hold that the evidence is in that direction. The accused was caught hold of by the Excise Officials for possessing toddy which runs to about 10 liters. He had no proper explanation. If he was really measuring toddy in that particular shop he could have produced some documents to establish the same for the reason that when one admits possession it is for him to prove the nature of Crl.A. No. 891 OF 2003 -:4:- possession. As stated by me earlier there is no contention for the accused that he was in possession of any toddy. So this argument at this stage cannot be accepted. Then the evidence of PWs.1 to 3 and 4 would make it clear that toddy was taken from him. It contains 8.61% by volume of ethyl alcohol. He was having toddy in a cycle which will show that possession was only conscious possession. So one cannot hold that S.58 of the Abkari Act is not attracted. Therefore I hold that this Court cannot interfere with the finding of guilt u/s 58 of the Abkari Act. 5. Now turning to the question of sentence, it has to be stated that he is a toddy tapper by profession and toddy was found to be in possession. He had a large family to be looked after. Though the offence comes under the ambit of Section 58 of the Abkari Act, in these types of cases the Courts are expected to take some leniency for the reason that the possession was only that of toddy which is a permitted liquid and being a toddy tapper by possession he deserves sympathy. I feel the interest of justice can be met by Crl.A. No. 891 OF 2003 -:5:- reducing the sentence of imprisonment to a period of one month u/s 58 of the Abkari Act and to pay a fine of Rs.1,00,000/- in default of which he shall undergo simple imprisonment for a further period of 15 days. In the result the appeal is disposed of as follows. (1) The finding of guilt u/s 58 of the Abkari Act is confirmed. (2) The sentence is modified and the accused is directed to undergo simple imprisonment for a period of one month and to pay a fine of Rs.1,00,000/- and on default he has to undergo simple imprisonment for 15 days. (4) He is entitled to set off u/s 428 Cr.P.C. (5) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. No. 891 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 891 OF 2003 = = = = = = = = = = = J U D G M E N T 29th June, 2009