IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 341 of 2001() ---------------------------------------- CRA.56/1998 of ADDL. SESSIONS COURT, ALAPPUZHA CC.210/1996 of JDUL.MAGISTRATE OF FIRST CLASS COURT, RAMANKARI .................... PETITIONERS/APPELLANTS/ACCUSED: -------------------------------------------------------- 1. RAJESH, S/O.VIVEKANANDAN, ASHA SADANAM, KIDANGARA MURI, VELIYANADU VILLAGE. 2. VIVEKANANDAN, S/O.NARAYANA PANICKER, ASHA SADANAM, KIDANGARA MURI, VELIYANAD VILLAGE. BY ADV. MR.R.BINDU (SASTHAMANGALAM) MR.R.JAYAKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON TH E SAME DAY PASSED THE FOLLOWING: rs. Crl.Rev.Pet.No. 341 of 2001 ORDER ON CRL.MP. NO.1505/2001 IN CRRP NO.341/2001 DISMISSED 27/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P..No.341 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2009 ORDER Revision petitioners are accused persons in C.C.No.210/1996 of Judicial First Class Magistrate Court, Ramankary and appellants in Crl.Appeal No.56/1998 of Additional Sessions Court, Alappuzha. They were convicted under Section 58 of the Abkari Act and were sentenced to undergo rigorous imprisonment for three months each and to pay a fine of Rs. 5,00/- each , in default, to undergo simple imprisonment for two months each by the trial court which is confirmed in appeal. The accused persons have now come up in revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that the accused persons who are the son and father were found to be in possession of 15 litres of illicit arrack in their house Asha Sadanam at Kidangara on December 27, 1995 and that thereby committed the offence punishable under Section 58 of Abkari Crl.R.P..No.341/2001 Page numbers Act. 3. The accused person on appearance before the trial court pleaded not guilty to a charge under Section 58 of Abkari Act. PWs 1 to 3 were examined and Exts.P1 to P6 were marked and MO1 was produced on the side of prosecution. When questioned under Section 313 of Cr.P.C., the accused persons pleaded innocence. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 58 of Abkari Act and convicted them thereunder and sentenced them as aforesaid which is confirmed in appeal. The accused persons have now come up in revision challenging their conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Section 58 of the Abkari Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed on Crl.R.P..No.341/2001 Page numbers the revision petitioners is excessive or unduly harsh ? Point No.1 6. PWs 1 to 3 were examined and Exts.P1 to P7 were marked on the side of prosecution before the trial court to prove the guilt of the accused. PW1 is the then Excise Inspector of Kuttanad Excise Range and PW3 is the Assistant Excise Inspector therein. They testified that on December 27, 1995 on receiving information that second revision petitioner had been dealing with illicit arrack at his house Asha Sadanam at Kidangara , they prepared a search memo and proceeded to the above house and on search they found ten cans out of which 7 cans contained two litres of illicit arrack each and one can contained 1 litre of illicit arrack, that first revision petitioner was present in the house and that by smelling and tasting they found the liquid was illicit arrack. PW1 prepared the mahazer Ext.P1. PW1 then registered the case. Ext.P2 is the occurrence report. First revision petitioner was then released on bail. Ext.P5 is the search list and Ext.P5(a) is the signature of the first revision petitioner acknowledging the copy of the search Crl.R.P..No.341/2001 Page numbers list. On enquiry, the Secretary of Valiyanad Grama Panchayat issued the certificate Ext.P4 to the effect that the said house belongs to the second revision petitioner . Therefore he was also made an accused. After completing the investigation, charge sheet was laid by PW1 . 7. I have gone through the evidence of PWs 1 and 3. Nothing was brought out during their cross examination to discredit their evidence. Further it was not suggested during their cross examination to show that they have any enmity towards the accused to foist a false case against them. Therefore, in my view, the trial court as well as the lower appellate court is perfectly justified in believing their evidence. PW2, the alleged independent witness for the search and seizure, turned hostile and did not support the prosecution. 8. The main argument advanced by the counsel for the revision petitioners was that there is no evidence to show that PWs 1 and 3 took sample of the said illicit arrack and that therefore there is no evidence to show that the liquid seized from the house of the accused persons is illicit arrack. I find no force in the above contention. It is true that Ext.P6 is the report of the Chemical Analysist , But there is Crl.R.P..No.341/2001 Page numbers nothing to show that any sample was taken either by PWs 1 and 3 or from court. Therefore, it is doubtful whether Ext.P6 relates to this case. But PWs 1 and 3 have categorically stated that by smelling and tasting they have found that the liquid contained in the can was illicit arrack. PWs 1 and 3 being experienced Excise officials definitely, they could say whether the liquid is illicit arrack by smelling and tasting. Therefore the trial court and the lower appellate court are perfectly justified in believing the evidence of PWs 1 and 3 on this aspect and finding that the liquid seized from the accused persons was illicit arrack. Therefore, I am inclined to hold that trial court as well as lower appellate court was right in believing the evidence of PWs 1 and 3 and holding that the first revision petitioner was found in possession of 15 litres of illicit arrack in his house which is an offence punishable under Section 58 of Abkari Act. 9. The next question is whether the second revision petitioner has committed any offence. It is true that the house in question belongs to the second accused. But no evidence is forth coming from the prosecution to show that second revision petitioner has anything to do Crl.R.P..No.341/2001 Page numbers with the seized illicit arrack. Therefore the trial court as well as the lower appellate court is not justified in finding him guilty of the offence punishable under Section 58 of Abkari Act. That being so, he has to be acquitted of the charges levelled against him. Point No.2 10. As regards the sentence , the trial court has imposed a sentence of rigorous imprisonment for three months each and to pay a fine of Rs. 500/- each, in default, to undergo simple imprisonment for two months each which is confirmed in appeal. I have found that second revision petitioner has not committed any offence. Therefore, conviction of the second revision petitioner is set aside and is acquitted of all the charges levelled against him. 11. As regards the sentence of first revision petitioner, the maximum sentence prescribed under Section 58 of Abkari Act prior to amendment was a fine which shall not be less than 15,000/- and imprisonment for a term which may extend to one year. Taking into consideration the fact that the incident occurred on December 27, 1995, I feel that a sentence of imprisonment till the rising of court and a Crl.R.P..No.341/2001 Page numbers fine of Rs. 15,000/- , in default, to undergo simple imprisonment for three months would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 58 of the Abkari Act is confirmed. Conviction of the second revision petitioner under Section 58 of Abkari Act is set aside and is acquitted of the charges levelled against him. The sentence of the first revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/- , in default, undergo simple imprisonment for three months. Their bail bonds are cancelled. First revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P..No.341/2001 Page numbers