Sivadasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931** **CRL.A.No. 471 of 2002()** **---------------------------------** ## **SC.373/2000 of ADDL. SESSIONS FAST TRACK COURT-II (ADHOC), THRISSUR** **....................** ## **APPELLANT/ ACCUSED** **---------------------------------** **SIVADASAN, S/O.KUNJIKALAVAN,TAIVALLIYIL HOUSE, ALA, KOTHAPARAMBA, KODUNGALLUR.** **BY ADV. MR.P.VIJAYA BHANU MR.P.M.RAFIQ** ## **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 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Rs/** ## M.N. KRISHNAN, J. --------------------------CRL.A.NO..471 OF 2002 -----------------------------Dated this the 2[nd] day of June, 2009 ## JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.373/2000 before the Additional Sessions Judge, Fast Track Court-II, (Adhoc), Thrissur. The accused was charged under Section 55(a) and (i) of the Abkari Act and was found guilty under Section 55(a) and was directed to undergo R.I. for one year and to pay a fine of Rs.One lakh and in default, to undergo imprisonment for six months. It is against that decision, the appeal is preferred. The brief facts necessary for the disposal of the appeal are as follows: 2. It is the case of the prosecution that while the preventive squad were proceeding, they found the accused carrying Mo1 and on examination, found that he was possessing toddy measuring 4.700 liters and further that he was taking the said toddy for sale. Thereafter, sample was taken and presented for chemical analysis. The court below, on appreciation of the materials, found him guilty under Section 55(a) of the Act. The point that arises for 2 CRL.A.NO.471/02 determination is whether the accused is guilty of the offence under Section 55(a) and whether the conviction and sentence is proper. ## 3. Points 1 and 2: The accused admittedly is a toddy taper by profession. On 7.8.1999, the excise officials found him to be in possession of toddy, which according to the prosecution, was intended for sale and therefore, prosecution has been launched against the same. The factum of recovery from him of toddy and that has been properly sampled and sealed and the chemical examiner’s report would reveal that the liquor which was found in his possession was toddy. When the possession of toddy is found, it is for him to explain the circumstances under which he came into possession, otherwise Section 64 of the Abkari Act draws a presumption against him. The materials available are only sufficient to establish that factor and therefore, I also hold that the accused had not succeeded in discharging the burden under Section 64 of the Abkari Act. 4. The next question would be even if he is found to be in possession of 5 liters of toddy, whether it would attract Section 3 CRL.A.NO.471/02 55 (a) of the Abkari Act. The trial court has clearly found that the materials available does not show that it was intended for sale. In Paragraph-13 of the judgment, the court has held “ mere possession does not prove offence of sale. It may be for consumption or making of any spirit or vinegar. There is no evidence that the accused had possessed the liquor for sale. Under Section 55 of the Abkari Act in order to convict a person guilty under Section 55(a), one has to establish that he was illegally importing, exporting, transporting or possessing liquor. A Division Bench in the decision reported in **Mohan v. State of Kerala** (2007 (1) KLT 845) at page 852 towards the end of para-9 held “ therefore mere possession even with knowledge that possession was illegal will not attract a higher penalty”. Here, admittedly the accused is a toddy taper. According to him, he was taking it for sale to the toddy shop. Though the prosecution has got a case that he had already measured the toddy on that relevant date and the balance was taken for the purpose of sale, it does not stand established. One cannot categorize carrying of 5 liters of toddy into Section 55(a), but of course, it will come under the provisions of 4 ## CRL.A.NO.471/02 Section 63 of the Abkari Act. Under Section 63 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, and not otherwise provided for in this Act shall on conviction before a Magistrate, be punished for each such willful act or omission with fine [which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both. Now the accused had attempted to explain away his possession by contending that it was intended for being taken to the toddy shop. But, he did not have the necessary papers at the relevant point of time to explain it away. So, he has not successfully established that his possession was for the purpose of measuring for the toddy shop. But, at the most, it amounts possession without legal authority and therefore, as held by this Court in the decision reported in **Sabu v. State of Kerala** (2007(4)KLT 169) it will be only Section 63 that will be attracted. It was also a case where a person was found to be in possession of more than the prescribed quality of Indian made foreign liquor and it was under those circumstance, the court held him liable under 5 CRL.A.NO.471/02 Section 63 of the Act. 5. Therefore, from these discussions, I hold that the accused can be found guilty under Section 63 of the Abkari Act and not under Section 55(a) and therefore, the conviction and sentence passed by the trial court calls for interference. I set aside the conviction under Section 55(a) and find him guilty under Section 63. The Criminal appeal is disposed of as follows: 1. The conviction and sentence passed under Section 55 (a) of the Abkari Act is set aside. 2. The accused is found guilty under Section 63 of the Abkari Act and is convicted thereunder and sentenced to pay a fine of Rs.5,000/=. In default, he shall undergo simple imprisonment for a period of one month. ## M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.471/02 7 CRL.A.NO.471/02