IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.Rev.Pet.No. 666 of 2001() ----------------------------- CRA.355/1998 of IST ADDL.SESSIONS COURT, KOZHIKODE CC.275/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- KRISHNANKUTTY, S/O.GOVINDAN, VAVAD AMSOM DESOM, KODUVALLY. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.666 OF 2001 --------------------------------------------- Dated 7th July, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 55 (g) of Abkari Act by Judicial First Class Magistrate-II, Thamarassery in C.C.275/1997. Though petitioner challenged the conviction and sentence before Sessions court, Kozhikode in Crl.A.355/1998, learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for CRRP 666/01 2 the petitioner submitted that though in the light of evidence, conviction for the offence under Section 55(g) of Abkari Act is to be confirmed, petitioner is entitled to the benefit of the benevolent provisions of Probation of Offenders Act. It is submitted that petitioner was being treated for mental illness and in such circumstances, it is not in the interest of justice to direct the petitioner to undergo imprisonment. It was pointed out that though when prosecution witnesses were cross examined, though it was not pointed out, when petitioner was questioned under Section 313 of Code of Criminal Procedure, it was stated by him that he was undergoing treatment for mental illness and learned Magistrate did not accept the said defence as materials were not produced and CRRP 666/01 3 before the appellate court, petitioner had produced records to prove that he was being treated for mental illness but learned Sessions Judge did not accept them finding that it was obtained only subsequent to the seizure of the contraband article and not prior to or at the time of seizure. Learned counsel submitted that in such circumstances, a report was called for by this court from District Probation Officer, Kozhikode and the report discloses that petitioner was undergoing treatment at Institute of Mental Health and Neuro Sciences, Kozhikode and though illness is under control, he does not understand the consequence of his acts and in such circumstances, petitioner is to be granted the benefit of probation of Offenders Act. 4. Report submitted by District Probation Officer, Kozhikode before this court, reveals that petitioner was treated at Institute of Mental Health and Neuro science, Kozhikode for CRRP 666/01 4 Sehizopharnia and though illness is now under control, he is not in a position to work and is not even follow what others say. District Probation Officer has also reported that his father is no more. Mother is aged. Petitioner has a wife and children. The wife is also suffering from illness. It is reported that his mother, wife and children are fond of him and they take care of him and it is a fit case to grant the benefit of benevolent provisions of Probation of offenders Act. 5. Abkari Act does not exclude applicability of Probation of offenders Act. This court in Ammini v. State of Kerala (1981 KLT SN Case No.50, Page 28) considered the question of applying Probation of Offenders Act to an accused of an offence under the Abkari Act. Holding that Abkari Act does not contain any provision prohibiting use of Probation of Offenders Act to an offender, CRRP 666/01 5 convicted under Section 55 of the Act, it was cautioned that considering the fact that the offence is not only involve revenue of the State but also to the public health, it must be in the mind of the court, when assessing whether probation treatment could be given to a particular offender. 6. The punishment provided for an offence under section 55(g) of the Abkari Act, prior to 3.6.1997, was imprisonment for a term which may extend to two years and a fine of not less than Rs.25,000/-. Considering the fact that petitioner is a schizophrenia patient and the report submitted by the District Probation Officer, Kozhikode, it is not in the interest of justice to send the petitioner to prison to undergo imprisonment. Instead petitioner could be granted the benefit as provided under section 4 of the Probation of Offenders Act. CRRP 666/01 6 Revision is allowed in part. Conviction of the petitioner for the offence under section 55 (g) of the Abkari Act is confirmed. The sentence is set aside. Petitioner is granted the benefit of Probation of Offenders Act. Judicial First Class Magistrate-II, Thamrasserry is directed to release the petitioner on probation of good conduct on executing a bond for Rs.5000/-, with two solvent sureties, to appear and receive the sentence as and when called upon, during a period of three years, and to keep peace during that period. Petitioner is directed to appear before Judicial First Class Magistrate, Thamarasserry and execute the bond, on 12.8.2010. Send back the records. M.SASIDHARAN NAMBIAR, JUDGE. uj.