Mohandas vs State of Kerala

Type Court Judgment Court Kerala Decided Jun 30, 2020

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Citation: sooperkanoon.com/1746544
Court: Kerala High Court
Judge: Honourable Mr. Justice P.V.Kunhikrishnan
Decided On: Jun 30, 2020
Case Number: CRL.A/2167/2005

Parties & Advocates

Appellant / Petitioner

Mohandas

Respondent

State of Kerala

Excerpt

.....public prosecutor.8. the learned counsel for the appellant submitted that, even if the entire prosecution case is accepted, no offence under section 55(i) of the abkari act is attracted.9. the learned public prosecutor submitted that, from the facts and circumstances of the case, sale of the toddy can be presumed by the court. during the relevant period a person can possess only 1½ liters of toddy, and the accused was found in possession of excess quantity of toddy.10. the point for consideration in this case is whether an offence under section 55(i) of the abkari act is made out.11. altogether, four witnesses were examined bycrl.appeal no.2167 of 2005 4 the prosecution. the admitted prosecution case is that the police party found the accused in possession of mo1 cannas, which contain toddy, mo2 funnel and mo3, a plastic cup. the case of the prosecution is that when the police party reached in the place of occurrence, three persons were found in a rubber estate. two of them ran away from the place. the remaining person questioned by the police and he deposed that, he is mohandas. he was arrested and mo1 to mo3 were seized. there are no sale proceeds seized by the police. mo1 is the can, mo2 is the funnel and mo3 is a plastic cup. mo1 contained toddy. toddy is not a prohibited item as per abkari act. possession of toddy by the accused, along with two others will not constitute the sale of toddy by the accused unless there is any other evidence. if excess quantity of toddy is seized, the accused cannot be convicted under section 55(i) of the abkari act. the trial court observed like this:“it is true that, the evidence of pw3 and pw4 does not show that, they saw the accused selling today to anybody'.”12. thereafter, based on mo1 to mo3, the courtcrl.appeal no.2167 of 2005 5 presumed that there is sale. i cannot accept the findings of the trial court. simple possession .....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942 CRL.A.No.2167 OF 2005 AGAINST THE JUDGMENT IN SC NO.556/2004 DATED 23-11-2005 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
AGAINST THE JUDGMENT IN CP NO. 37/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI APPELLANT/ACCUSED: MOHANDAS AGED 41 YEARS S/O. NARAYANAN, VETTIKAPALLIYIL HOUSE, VIMALAGIRIKARA, UPPUTHARA VILLAGE, IDUKKI DISTRICT BY ADV. SRI.K.R.SACHIDANANDAN RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL NO.2167 OF 2005 2

JUDGMENT

The above appeal is filed by the accused in S.C. No.556 of 2004 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha.

2. The accused is charge sheeted by the Sub Inspector of Police, Idukki alleging offence under Section 55(a) and (i) of the Abkari Act.

3. The prosecution case is that on 29.07.2002 at 4.45 p.m., the accused was found in possession 15 litres of toddy in a can for sale.

4. On appearance of the accused, the trial court framed charge under Section 55(a)& (i) of the Abkari Act.

5. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P6 are the documents marked on the side of the prosecution. MO1 to MO3 are the material objects.

6. After going through the evidence and

   documents,        the     trial      court      found    that,       the    accused
   committed        the     offence       under      Section          55(i)    of   the
CRL.APPEAL NO.2167 OF 2005                 3
   Abkari     Act.     He     is    sentenced       to        undergo         rigorous
   imprisonment        for    six    months       and    to        pay   a    fine    of

Rs.1,00,000/-. In default of payment of fine, he is directed to undergo Rigorous Imprisonment for a further period of three months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.

7. Heard the learned counsel for the appellant and the learned Public Prosecutor.

8. The learned Counsel for the appellant submitted that, even if the entire prosecution case is accepted, no offence under Section 55(i) of the Abkari Act is attracted.

9. The learned Public Prosecutor submitted that, from the facts and circumstances of the case, sale of the toddy can be presumed by the court. During the relevant period a person can possess only 1½ liters of toddy, and the accused was found in possession of excess quantity of toddy.

10. The point for consideration in this case is whether an offence under Section 55(i) of the Abkari Act is made out.

11. Altogether, four witnesses were examined by

CRL.APPEAL NO.2167 OF 2005 4 the prosecution. The admitted prosecution case is that the Police party found the accused in possession of MO1 cannas, which contain toddy, MO2 funnel and MO3, a plastic cup. The case of the prosecution is that when the Police party reached in the place of occurrence, three persons were found in a rubber estate. Two of them ran away from the place. The remaining person questioned by the Police and he deposed that, he is Mohandas. He was arrested and MO1 to MO3 were seized. There are no sale proceeds seized by the Police. MO1 is the can, MO2 is the funnel and MO3 is a plastic cup. MO1 contained toddy. Toddy is not a prohibited item as per Abkari Act. Possession of toddy by the accused, along with two others will not constitute the sale of toddy by the accused unless there is any other evidence. If excess quantity of toddy is seized, the accused cannot be convicted under Section 55(i) of the Abkari Act. The trial court observed like this:

“It is true that, the evidence of PW3 and PW4 does not show that, they saw the accused selling today to anybody'.”

12. Thereafter, based on MO1 to MO3, the court

CRL.APPEAL NO.2167 OF 2005                  5
   presumed      that         there   is    sale.     I    cannot    accept      the
   findings      of      the    trial      court.     Simple     possession       of
   toddy    will        not    constitute        an   offence    under     Section

55(i) of the Abkari Act. There would be no presumption of sale if possession of a funnel or a glass were found with the accused. The prosecution has no charge that the accused was found in possession of an excess quantity of toddy. Admittedly, there were three persons at the place of occurrence. They may be consuming toddy. Toddy is not a prohibited item. In such circumstances, I think the accused is entitled to the benefit of doubt.

Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 23.11.2005 in S.C. No.556 of 2004 by the Additional Sessions Judge (Adhoc)-II, Thodupuzha, are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. Sd/- P.V.KUNHIKRISHNAN pkk JUDGE

Same Court & Year Kerala · 2020 Same Parties Mohandas vs State of Kerala Same Judge Honourable Mr. Justice P.V.Kunhikrishnan