IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.Rev.Pet.No. 13 of 2008() ---------------------------- CRA.134/2003 of ADDITIONAL SESSIONS JUDGE (ADHOC II) KASARGOD SC.510/1999 of ASSISTANT SESSIONS COURT, HOSDRUG .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- M.BABU, S/O. APPU, RAVANESHWARAM, KARAKKUNNU DESOM, CHITHARI VILLAGE, HOSDURG TALUK. BY ADV. SMT.T.SUDHAMANI RESPONDENTS: STATE ------------------ THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.13 of 2008 ------------------------------------- Dated this the 3rd day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under the Kerala Abkari Act. The petitioner was found guilty, convicted and sentenced under Section 55 (g) of the Kerala Abkari Act. He was allegedly found to be in possession of 12 litres of wash when the excise party detected the crime and apprehended him on 26.07.98. 2. The accused denied the offence alleged against him and thereupon Pws 1 to 7 were examined and Exts.P1 to P7 were marked. M.O.1 was also marked. Pws 1 and 2 are the preventive officers in the excise party which detected the crime. Ext.P1 is the arrest memo and Ext.P2 is the seizure mahazer. PW3 is the village officer who prepared Ext.P3 site plan. PW4 is the witness who allegedly witnessed the seizure and attested Ext.P2 seizure mahazar. He confirmed that he had subscribed the signature to Ext.P2, but did not support the case of the prosecution. He was declared hostile. Pws 5 to 7 are officials of the Excise Crl.R.P.No.13 of 2008 2 Department who had various roles to play in the registration of the crime and its investigation. Exts.P4 and P5 are the occurrence reports. Ext.P6 is a report submitted by the Investigating Officer to court and Ext.P7 is the Chemical Examiner's report. 3. Accused took up a defence of total denial. No defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence alleged against the accused. Accordingly the courts below proceeded to pass the impugned concurrent judgments. 5. Before me, the learned counsel for the petitioner has advanced arguments. Counsel assails the impugned verdict of guilty and conviction on various grounds. 6. First of all it is contended that there was a delay in the contraband articles reaching the court. Detection was on 26.07.98. The same was forwarded to the court along with a report dated 28.07.98. The Investigating Officer submitted before court that the article was sent to court on 28.07.98. But records show that the contraband article reached the court on 30.07.98. No specific explanation was offered for this gap of time between Crl.R.P.No.13 of 2008 3 28.07.98 and 30.07.98. The counsel contends that this is a serious error which would entitle the accused for the benefit of doubt. Secondly it is contended that the name of the village mentioned in the seizure mahazar is different from the name of the village mentioned by the village officer in Ext.P3 site plan. This difference in the name of the village has not been explained, it is submitted. The evidence clearly shows that the detecting officer had offered an explanation about the mistake committed by him in referring to the name of the village in the seizure mahazar. It is stated that a report to that effect has been submitted before court. Even though PW1 stated that such a report was filed, Ext.P6 shows that it was PW7 who filed the said report. The learned counsel for the petitioner further submits that in the requisition submitted by the Investigating Officer to court to forward sample to the Chemical Examiner, specimen seal had not been affixed. The Chemical Examiner reported that the specimen seal was intact. Relying on these circumstances, the learned counsel for the petitioner submits that the petitioner is entitled for the benefit of doubt. Crl.R.P.No.13 of 2008 4 7. I am unable to agree that the alleged delay from 28.07.98 to 30.07.98 is crucial or vital. According to me it is insufficient from the broad facts and circumstances in this case to generate any reasonable doubt in the mind of the court. Similarly in view of Ext.P6 report submitted by PW7-the misstatement by PW1 that such a report was submitted by him is of no significance and cannot at any rate generate any reasonable doubt in the mind of the court. The contention raised regarding the specimen seal is also found to be of no crucial merit as the contraband article is forwarded to the Chemical Examiner through court and the ordinary and legal procedure for forwarding articles to the expert by the court is that at the time of forwarding articles to the expert the court is certainly expected to affix specimen seal, which is reported in Ext.P7 to be intact. These circumstances are not thus sufficient to concede any benefit of doubt to the accused. 8. Lastly and finally the counsel submits that the sentence imposed is excessive. The sentence of S.I for a period of one year has been imposed. The contraband article is only 12 litres of wash. I am satisfied, in the facts and circumstances of this case, that further leniency can be shown to the petitioner in the matter of substantive sentence of imprisonment imposed. Crl.R.P.No.13 of 2008 5 9. In the result: a) This Crl.R.P is allowed in part; b) The concurrent verdict of guilty and conviction of the petitioner are upheld; c) The substantive sentence of imprisonment imposed is modified and reduced to S.I for a period of 3 months. The direction for payment of fine and the default sentence as also the direction that the petitioner is entitled for set off under Section 428 Cr.P.C are upheld. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.13 of 2008 6