Kerala High Court
Chathukutty vs State Of Ekerala on 11 October, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934
CRL.A.No. 481 of 2005 (A)
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SC.127/2003 of ADDL.SESSIONS JUDGE (ADHOC)-II, MANJERI
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APPELLANT(S)/ACCUSED::
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CHATHUKUTTY,
NEELANDAN, KARIPPAIMATTIL, PUKAYOOR DESOM
TIRURANGADI TALUK.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/RESPONDENT::
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STATE OF EKERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
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Crl.A. No.481 of 2005
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Dated this the 11th day of October 2012
J U D G M E N T
The appellant challenges the verdict of conviction under Sec.55(g) of Abkari Act and the sentence of R.I. for 2 years and fine of Rs.1,00,000/- imposed by the Addl. Sessions Judge (Adhoc) No.II, Manjeri.
2. The case of the prosecution is that on 23.10.2000 at about 11.45 a.m., the accused was found keeping possession of 10 litres of wash for distilling illicit arrack. It was found in the veranda of the house belonging to and possessed by the accused. From the wash, 600ml was taken in a 750ml bottle as sample. The contraband article was sealed and labelled. The sample was also sealed and labelled. The properties were seized as per Ext.P3 mahazar. The accused was arrested then and there. On the same day, Ext.P5 occurrence report was registered. When the sample was sent for chemical examination, it was found to contain 11.13% by volume of Crl.A. No.481 of 2005 -: 2 :- ethyl alcohol.
3. PW1 to PW3 were examined and Exts.P1 to P6 were marked. MO1, the blue plastic pot which contained wash was identified and marked. The court below accepted the evidence given by PW2, the Excise Inspector which was supported by PW3, the Preventive Officer and held the appellant guilty and convicted him as mentioned above.
4. Learned counsel for the appellant submits : The prosecution has failed to prove that the liquid alleged to have been seized from the possession of the accused was wash intended for distillation. It is not a material used for distillation. At any rate, mere possession of the same would not attract the offence under Sec.55(g) of the Abkari Act and as such, the court below should not have convicted the appellant.
5. Learned Public Prosecutor has strongly opposed the submission pointing out that the evidence given by PW2 and PW3 was properly appreciated by the trial court. Ext.P1, the chemical examiner's report would show that the sample which Crl.A. No.481 of 2005 -: 3 :- was alleged to be wash contained ethyl alcohol and as such, it can be found that it is a material used/intended for distillation.
6. PW1, the Excise Inspector and PW2, the Preventive Officer have sworn that when they reached the house of the accused, he was found carrying a plastic can and coming out of the house (room) towards the veranda and so he was intercepted and the can was examined. By smell and taste, the liquid in it was identified to be wash. It was stated that 600ml was taken as sample in a bottle of 750ml. It was sealed and labelled in the presence of the accused and witnesses.
7. The main argument advanced by the learned counsel for the appellant is that mere possession of wash does not attract the offence under Sec.55(g) of Abkari Act. Sri.P.V. Kunhikrishnan, the learned counsel appearing for the appellant relies upon the decision in Santhosh v. State of Kerala [2007 (2) KLT 27] in support of his submission that possession simplicitor of articles which can be used for the purpose of manufacturing liquor cannot, in the absence of Crl.A. No.481 of 2005 -: 4 :- cogent and probative indications, be assumed to be possession for manufacturing liquor. The facts dealt with in Santhosh's case are distinguishable on facts. There, the accused was found transporting jaggery and kareenja patta in an autorickshaw when he was intercepted by the police. Jaggery can be used for other purposes; for preparing food items etc; kareenja patta also can be used for some other purpose. Those two properties were not seen in a mixed up condition. It was not actually 'wash' that was seized from the possession of the accused. It was in that context this court held that mere possession of such materials, jaggery and kareenja patta by simplicitor will not be sufficient to sustain the charge under section 55(g) of Abkari Act.
8. In the case on hand, the evidence is that the accused was coming out of the house carrying a plastic can with him which contained wash. The chemical examiner's report shows that the same contained 11.13% by volume of ethyl alcohol. It was in liquid form. In Santhosh's Case cited supra, jaggery and other articles were carried in an Crl.A. No.481 of 2005 -: 5 :- autorickshaw separately. In the case on hand it can be seen that jaggery, water and other articles were in such a mixed up condition that the jaggery and other articles had already become dissolved in water and transformed into a solution that it itself underwent the process of fermentation and that was why the liquid contained 11.13% by volume of ethyl alcohol. Therefore, it was actually wash intended for manufacture of liquor.
9. In State of Kerala v. Choyunni [1980 KLT 107] regarding wash it was held by this Court:
"What was recovered and found in the possession of the accused was a material which was used for the purpose of manufacturing liquor other than toddy and the same clearly comes within the ambit of section 55
(g) of the Act."
Relying on the said decision the learned Public Prosecutor submits that in this case also what was recovered from the possession of the accused was 'wash', which is a material used for the purpose of manufacturing liquor and as such section 55(g) of the Act is certainly attracted. Crl.A. No.481 of 2005 -: 6 :-
10. The learned Public Prosecutor has also relied upon the decision in Kittunny v. State of Kerala [1981 KLT SN 69 Case No:124], where it was held:
"Section 3(10) of the Act defined 'Liquor' as including spirits of wine, methylated spirits, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. The sample seized in this case is shown to contain ethyl alcohol.
Section 55(g) renders punishable any unauthorised user, keeping or being in possession of "any materials, still, utensil, implement whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug". The argument is that the expression 'still, utensil, implement, or apparatus' lend colour and meaning to the expression 'material' and that S.55(g) takes in only materials which are analogous to still, utensil, implement etc. The word 'material' does not follow the other expressions, but precedes them. It cannot be said that it takes colour and meaning from the subsequent expressions "Material" only means "matter". Wash which is a liquid containing small percentage of alcohol is "matter" or "material".
Viewed in this light, keeping or being in possession of wash for distillation will come under section 55(g) of the Act."
(underlined by me to lay emphasis) Crl.A. No.481 of 2005 -: 7 :-
11. It was held in Paravan v. State of Kerala [2007(1) KLT 396] thus:
"Going by the definition of 'wash' in R.2(g) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, 'wash' means a sacharine solution frm which spirit is obtained by distillation and it also includes fresh wash or wort."
It was further held:
"Thus, wash is a sugar solution which, after fermentation, can be converted into spirit or arrack through distillation. Even otherwise, going by the ordinary connotation of the expression "wash", also, it is fermented liquor ready for the distillery. Thus, "wash" is the raw-material for preparation of arrack which is a potable liquor containing alcohol."
Hence, in the light of the decisions cited supra also, I find no hesitation to hold that 'wash' seized in this case, is a material used for the manufacture of liquor.
12. It is also argued by the learned counsel for the appellant that there is no evidence to show that the accused was in possession of liquid knowing it to be 'wash' intended for distillation. The learned counsel submits that the Crl.A. No.481 of 2005 -: 8 :- presumption under Sec.64 of the Act is not applicable in the instant case. Sec.64 of the Act reads :
"64. Presumption as to commission of offence in certain cases :- In prosecutions under Section 55, Section 55B, Section 56A, Section 57, Section 58, Section 58A and Section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under Section 8 or Section 55 or Section 55B or Section 56 or 56A or Section 57 or Section 58 or Section 58A or Section 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence;
Learned counsel tries to explain and distinguish by saying that in Sec.64 the words "or any such materials as are ordinarily used " occurs after the words "other than toddy or Crl.A. No.481 of 2005 -: 9 :- of any intoxicating drug," and so, the learned counsel submits that the succeeding words "or any such materials..." are intended to qualify the words just preceding the words or expressions mentioned above. I find no merit in that contention. The presumption applies where the accused person is prosecuted for the offence under Sec.55, which includes Sec.55(g) that it shall be presumed until the contrary is proved that the accused has committed an offence under that Section. Since Sec.55(g) deals with wash and other materials, according to the learned counsel, the presumption would apply only if the accused was found in possession of any still, utensil, implement or apparatus whatsoever for the manufacture of liquor. That contention is unacceptable. The words "other than toddy or of any intoxicating drug,"
succeeding the word "liquor " are stated there to exclude toddy or any other intoxicating drug from the word "liquor ". The contention raised by the accused that 'wash' is not a material at all does not gain ground in view of what have been stated earlier. The words "or any such materials as are Crl.A. No.481 of 2005 -: 10 :- ordinarily used in the manufacture of liquor" would make it abundantly clear that wash which is a material ordinarily used in the manufacture of liquor would certainly be covered by the presumption contained in Sec.64 of the Act.
13. It has already been said that wash is a material used for manufacture of liquor. The fact that in Sec.55(g), the word "materials " precedes the other words "still, utensil, implement etc." and that the very same word "materials" is used in Sec.64 succeeding "utensil, apparatus etc." would make no difference. The first part of Sec.64, so far as it relates to Sec.55(g) of the Act is concerned, deals with still, utensil, implement or apparatus whatsoever used "for the manufacture of liquor' . They are not materials with which liquor can be manufactured. In other words, they are not ordinarily used "in the manufacture of liquor". So far as 'wash' is concerned, it is a material ordinarily used "in the manufacture of liquor". The word "for" used in the earlier part and the word "in" occurring in the later part would make the position clear that so far as 'wash' is Crl.A. No.481 of 2005 -: 11 :- concerned, it is a material ordinarily used in the manufacture of liquor; to mean; liquor can be manufactured from out of 'wash'. Utensils, implement, apparatus etc. are used in the process of manufacture of liquor, ie; "for the manufacture of liquor". Still, utensil, implement etc. are not materials with which liquor can be manufactured. In other words, they are not materials used "in the manufacture of liquor" . The words are used disjunctively. It is not intended to exclude 'wash' from the purview of Sec.64 of the Act. It is pointed out by the learned Public Prosecutor that the liquor defined in Sec.2(10) of the Act means "liquid consisting of alcohol". Therefore, wash also comes within the definition of 'liquor'.
14. The evidence given by PW2 and PW3 has been further scrutinised by me. Their evidence is supported by Ext.P3, the seizure mahazar, which is a contemporaneous record. Ext.P4 is the arrest memo which was signed by the accused and the witnesses which also reached the court on the same day along with Ext.P3 mahazar. Ext.P5 occurrence report and Ext.P6 forwarding note would prove to the hilt that Crl.A. No.481 of 2005 -: 12 :- the procedure was duly complied with and that there was no delay in production of the properties as well. The further fact that in Ext.P6, the specimen impression of the seal was also affixed and that also reached the court along with the seizure mahazar, occurrence report etc. would further strengthen the case of the prosecution that the accused was found in possession of wash and that it was seized from his possession in the manner stated by the prosecution. I find no reason to hold otherwise. The conviction is to be thus confirmed.
15. Learned counsel for the appellant submits that leniency may be shown in the matter of sentence. Learned counsel further submits that the appellant is completely bed ridden due to paralysis and so, it is practically impossible to execute the sentence. That is not in serious dispute. But the court cannot avoid passing sentence on the accused. The impracticability of execution of sentence is a matter to be seen by the executing court.
In the result, this Crl.A. is disposed of as stated below :-
Crl.A. No.481 of 2005 -: 13 :-
The conviction is confirmed.
In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo S.I. for one day and to pay Rs.1,00,000/- as fine and in default of payment of the same, the petitioner will undergo S.I. for three months.
N.K.BALAKRISHNAN, JUDGE.
Jvt