BOYA URUKONDAMMA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE petitioner is a woman. She was found to be carrying 8 litres of arrack and she was stopped and a sample was taken and the same was sent to the Analyst and the Analyst opined that it was highly diluted. THE Trial Court convicted the accused under sec. 34 (a) of the A.P. Excise Act, and sentenced her to two years' R.I. and also to pay a fine of Rs. 100/- in default to suffer S.I. for one month.

(2.) IN Criminal Revision Case No. 176 of 1982, by my judgment dated 25-3-1983, I held that mere possession does not automatically attract Sec. 34 (a). Possession or collection should be for the purposes mentioned in section 34 (a), viz., import, export, transport, manufacture of any intoxicant. Even under Clauses, (c), (d), (g), and (h) of Section 34 which make one punishable either for tapping any excise tree, or drawing toddy, or for bottling any liquor for purposes of sale, or selling or buying any intoxicant, one should necessarily possess or come into possession of the intoxicant. For instance, under clause (c) one comes into possession after tapping, under clause (d), one comes into possession after drawing toddy, under clause (g), one should have possession of liquor for bottling for purposos of sale and under clause (h) one should have possession of liquor for sale or would possess the same after buying. Therefore, mere possession of liquor or intoxicant by itself does not automatically attract section 34 (a). The facts of each case must be examined and it has to be seen which of the clauses of section 34 is attracted. If possession or collection of any intoxicant which also includes liquor or toddy is for the purpose of either importing or exporting or transporting or manufacturing, then only section 34 (a) is attracted. The framers of the Code also have prescribed minimum sentence of two years since the offences under sec. 34 (a) are of grave nature comparatively. This aspect becomes clear when we examine section 34 (e) and (f), viz., construction of any distillery or brewery or possession of any materials, still utensil, implement or apparatus for manufacturing, and the minimum sentence of two years is prescribed for the offences under clauses (a), (e) and (f) of the said Section. It can, therefore, be seen that the object of the Act is to award a minimum punishment of two years or more to such contravention, viz., possession and collection of the intoxicants for purposes mentioned in sec. 34 (a), or construction of any distillery or brewery or possession of any materials, still utensil etc., for similar purposes which are also declared to be serious offences. Therefore, the Court should examine the facts and should also consider whether the collection or possession of any intoxicant or liquor comes within any of the clauses (c) and (d) or for the purposes mentioned in clauses (g) and (h), in which case, the sentence need not be minimum of two years. IN the instant case, the petitioner, as already mentioned, was only carrying 8 litres. It is not as if she was found indulging in any manufacturing process so that it may be inferred that she had something to do with manufacturing also. It can be seen that she was carrying the liquor only for the purpose of selling, which liquor was also found to be highly diluted. Therefore, it falls under clause (h) of Section 34. Accordingly, the conviction of the accused under Sec. 34 (a) is set aside; instead, she is convicted under Sec. 34 (h) and sentenced to six months R.I. and also to pay a fine of Rs. 100/- in default to suffer S.I. for 15 days. With this modification of the sentence, the Crl. R,C. is dismissed. Crl. R.C. dissmissed.