Sabu vs State Of Kerala
2021 Latest Caselaw 15358 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                       CRL.A NO. 1509 OF 2006
 AGAINST THE ORDER/JUDGMENT IN SC 339/2005 OF ADDITIONAL SESSIONS
                COURT (ADHOC)-II, THODUPUZHA, IDUKKI
APPELLANT/ACCUSED:

            SABU
            S/O.KOCHUKESAVAN,CHERIYIL HOUSE, PRAKASH KARA,
            VATHIKUTTY VILLAGE.

            BY ADVS.
            SRI.A.C.DEVASIA
            SMT.ANCY MATHEW
            SRI.MATHEW DEVASSI



RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,, ERNAKULAM.

            BY ADV. SRI.E.C.BINEESH, PUBLIC PROSECUTOR




     THIS   CRIMINAL   APPEAL    HAVING    COME   UP   FOR   ADMISSION   ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1509 OF 2006
                                 2

                              JUDGMENT

The accused came up against the conviction

and sentence for the offence under Section 55(a)

and (i) of the Abkari Act. It is pertaining to

the alleged possession of 30 Ltr. of toddy kept

in the front Veranda of the house owned by the

accused. It is submitted that though three

independent witnesses, PW1 to PW3, were examined

so as to prove that the same was kept by the

accused for the purpose of sale, all of them

turned hostile. No other satisfactory evidence

adduced to show that it was kept for sale except

the interested testimony of the detecting

officer (PW5) as well as the investigating

officer who laid the charges (PW6). In fact no

satisfactory evidence was adduced to show that

the toddy was kept in the house of accused for

the purpose of sale. The brother of the accused

is a 'toddy tapper' and according to the accused

it was brought by him to the house of the CRL.A NO. 1509 OF 2006

accused and kept in the front veranda for the

purpose of measurement and to transport it to

the toddy shop. He was not examined by the

prosecution and no investigation was conducted

in that behalf. On the other hand, a strange

finding rendered by the court below that the

accused did not take any steps to examine his

brother as a witness. The initial burden to

prove the alleged offence always would lie on

the prosecution and when there is an allegation

of sale of the alleged toddy, it is upto

prosecution to prove the same without leaving

any other hypothesis rather than the one

pointing towards the guilt of accused, for which

no earnest efforts seen done either by the

detecting officer or by the investigating

officer who laid the final report, PW5 and PW6

respectively.

2. It is submitted by the learned Public CRL.A NO. 1509 OF 2006

Prosecutor that the permissible quantity comes

to only 2.50 Ltrs. and what is seized from the

custody of the accused comes to 30 Ltrs. It

would attract only the violation of permissible

quantity. As such, the offence under Section 63

of the Abkari Act alone would stand attracted.

The conviction and the sentence hence awarded

under Section 55(a) and (i) will stand set

aside. The accused is found guilty of the

offence under Section 63 of the Abkari Act and

convicted thereunder and sentenced to pay a fine

of Rs.5,000/-, failing which, the accused shall

undergo default sentence of simple imprisonment

for three months.

The appeal is allowed in part accordingly.

Sd/-

P.SOMARAJAN JUDGE SPV