STATE OF KERALA Vs. NARAYANAN

JUDGEMENT

(1.) THIS is an appeal by the State against an order of acquittal. The accused was charged under Ss, 51 (a) and 54 of the Travancore abkari Regulation (Regulation IV of 1073) for having been found in possession of seven measures of fermented toddy (the quantity is in excess of the quantity prescribed by the Government) and 48 ozs. of illicit arrack. The illicit arrack was found placed inside the kitchen and the toddy was found in a mud pot hidden in the compound at a place fifty feet from the house of the accused. P. W. 1, the Excise Inspector of the Poonjar Range who effected the search and the recovery as well as Pw. 4 the Preventive Officer who was present at the time of the search gave evidence that the illicit arrack was found in the north-eastern corner of the kitchen and that the fermented toddy was found in a pot which was covered up with earth at a place about fifty feet from the house. Besides these, two bottles with some traces of illicit arrack were also recovered from a wall-almirah in the kitchen. Pw. 1 gave evidence that the permissible quantity of toddy which one could possess without licence is 11/2 Eds. , that is, three bottles whereas the quantity that was found in M. O. II pot was 5 Eds. Pw. 1 had eighteen years' experience in the excise department and he gave evidence that he found it to be illicit arrack by smelling and tasting it. Pw. 4 also said that he has worked in a distillary for some time and from his experience he could say by the taste whether it is illicit arrack or not and that on tasting the arrack that was found in the house he found it to be illicit arrack. The recovery mahazar was attested by two witnesses who were examined as Pws. 2 and 3. Though they admitted having signed the mahazar and seen the jar with the arrack and the drawing up of the mahazar Pw-1, they denied having actually witnessed the recovery of the arrack and toddy. According to them they had gone over to the place only when the mahazar was being written. They had to be declared hostile and cross-examined and their cross-examination indicates that they were consciously giving such a version with a view to helping the accused. The accused when questioned pointedly about the prosecution evidence regarding the recovery of the illicit arrack and the toddy only said that they were not recovered from his house. The cross-examination of the witnesses would also indicate that the attempt of the accused was to make out that he was not living in the house. Pw-1 is definite that the accused was living in that house with his wife and children. The mahazar is also attested by the accused.

(2.) THE learned Magistrate acquitted the accused on the ground that there is no reliable evidence for finding that what was recovered was illicit arrack and toddy. According to the Magistrate since no attempt was made to have the toddy and arrack chemically analysed it is not possible to find that they are illicit arrack and toddy.

(3.) IN the result the order of acquittal is set aside and the accused is convicted under S. 51 (a) and sentenced to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for two weeks. . Allowed.