Back
2009 Supreme(Ker) 748
High Court of Kerala
THE HONOURABLE MR. JUSTICE V. RAMKUMAR
H. Madhavan
Versus
State
CRL.A. No. 640 of 2003
Date of Judgment : 17-09-2009
Headnote:
Kerala Abkari Act 1077 - Section. 3(11) - Definition of - liquor - Appeal against conviction - Accused was found in possession of 10 litres of wash kept for the preparation of arrack by illicit distillation and accused has thereby committed offences punishable under Sections 55(b) and 55(g) of the Abkari Act - Held, The word 'wash' is not defined in the Abkari Act. But the definition of 'liquor' contained in S.3(11) of the Abkari Act is wide enough to include wash. Thus, wash is a sugar solution which, after fermentation, can be converted into spirit or arrack through distillation. Going by the ordinary connotation of the expression 'wash' also, it is fermented liquor ready for the distillery. 'Wash' is thus the raw material for preparation of arrack which is a potable liquor containing alcohol - Having regard to the fact that the volume of wash was only 10 litres and the appellant is stated to be a first offender,Court do not think that the appellant deserves penal servitude by way of incarceration for three years - Accordingly, the sentence imposed on the appellant is reduced to rigorous imprisonment for 6 months and sentence of fine imposed on the appellant by the Court below, is, however, not interfered with as it is the mandatory minimum - But the default sentence is reduced to rigorous imprisonment for 3 months - Appeal is disposed of confirming the conviction entered but modifying the sentence as above and goes without saying that the appellant shall be entitled to set off under Section 428 Cr.P.C.
The appellant namely H.Madhavan, who was prosecuted by the Station House Officer, Rajapuram Police Station for offences punishable under Sections 55(b) and 55 (g) of the Abkari Act, challenges the conviction entered and the sentence passed against him by the Additional Sessions Court (Adhoc -I), Kasaragod for the offence punishable under Section 55(g) of the Abkari Act.
2. The case of the prosecution can be summarised as follows:-
On 19.3.1999 at about 8.15 a.m., in the kitchen of his residential house at Chendhalam bearing building No.KB-X/70 of Kodom Belur Panchayat in Kasaragod District the accused was found in possession of 10 litres of wash kept for the preparation of arrack by illicit distillation. The accused has thereby committed offences punishable under Sections 55(b) and 55(g) of the Abkari Act.
3. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and got marked 6 documents as Exts. P1 to P6 and 4 material objects as MOs. 1 to 4.
4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. As this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal of the accused under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to do so.
5. The learned Addl. Sessions Judge, after trial, as per judgment dated 17.3.03 acquitted the accused of the offence punishable under Section 55(b) of the Abkari Act but convicted him of the offence punishable under Section 55(g) of the Abkari Act. For the said conviction he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh (Rupees one lakh only) and on default to pay the fine, to suffer rigorous imprisonment for six months. It is the said order which is assailed in this appeal.
6. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor.
7. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:-
PW1 who was the Head Constable of Rajapuram Police Station who had accompanied PW4, the detecting officer would say that the distance from Attachakkanam is 300 metres. But PW3 the Village Assistant of Belur Village who prepared Ext.P1 site plan would say that the distance between the place of occurrence and Attachakkanam is 3 Kms. If so, the case of PW1 that they walked all the way to the place of occurrence from Attanganam, covering a distance of 3 kms in 15 minutes cannot be believed. This is a case in which PWs.1 and 4 would claim to have arrested the accused and seized the contraband liquor etc. from his dwelling house which is not a public place or an open space. Hence the arrest and seizure could not have been effected without a warrant in view of Section 34 of the Abkari Act. PW1 would say that the labels were fixed on all the M.Os. But during cross-examination he confessed that there was no label on any of the M.Os except MO2 Pot. PW2 who was the independent witness to the search and seizure has denied his signature in Ext.P2 search list. PW4, the Detecting Officer has confessed that he did not smell or taste the contents of the pot. No independent witness accompanied the Police party to the scene of detection. Even though the detection, arrest, search and seizure were on 19.3.1999, PW4 had admitted that the properties were produced before the court only on 22.3.1999. There is no evidence adduced as to who was in custody of the properties until then. Hence the Certificate of Chemical Analysis has no value at all. In the face of all these circumstances,
