IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.Rev.Pet.No. 1401 of 2001(B) ------------------------------- CRA.305/1999 of SESSIONS COURT, KOZHIKOE CC.359/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- SARADHA, W/O VAKKAYIL KRISHNAN NAIR AGED 47 YEARS, PUTHUPADI AMSOM VALLIAD DESOM, KOZHIKODE TALUK BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- THE STATE OF KERALA, REP. BY THE EXCISE INSPECTOR THAMARASSERY, KOZHIKODE DISTRICT THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1401 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.259/1997 of Judicial First Class Magistrate Court, Thamarassery and appellant in Crl.Appeal No.305/1999 of Sessions Court, Kozhikode. She was convicted under Section 55(a) of Abkari Act and was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 25,000/-, in default, to undergo simple imprisonment for 45 days by the trial court which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on February 4, 1997 at about 12.30 p.m. at Puduppadi amsom Valliad desom on the Adivaram-Valliad public road, the accused was found to be carrying a plastic can containing 3 litres of illicit arrack and thereby committed the offence punishable under Section 55(a) of the Abkari Act. The accused on appearance before the trial court pleaded not guilty to a charge under Section 55(a) of the Crl.R.P.No.1401/2001 Page numbers Abkari Act. PWs 1 to 5 were examined and Exts.P1 to P5 were marked and MO1 was produced by prosecution before the trial court. When questioned under Section 313Cr.P.C by the Magistrate, the accused denied the entire incident. No defence evidence was adduced. 3. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted her thereunder and sentenced her as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 4. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(a) of the Abkari Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 5. PWs 1 to 5 were examined and Exts.P1 to P5 were marked on the side of prosecution before the trial court. PW1 is the preventive Crl.R.P.No.1401/2001 Page numbers officer and PW2 is the Excise Guard attached to Excise Range Office, Thamarassery. They have detected the offence. They testified in terms of the prosecution case. I have gone through their evidence, a certified copy of which is submitted by the counsel for the revision petitioner as the lower court records are not called for in this case. Nothing was brought during their cross examination to discredit their evidence. Their evidence shows that accused was found to be in possession of plastic can containing 3 litres of illicit Arrack as alleged by prosecution. PWs 3 and 4 are independent witnesses who turned hostile and did not support the prosecution. PW5 is the investigating officer who laid the charge. 6. The main contention raised by the revision petitioner is that identity of the accused was not proved and that the Excise officials have falsely implicated the accused. There is no substance in the above contention. The accused was caught red handed while carrying the illicit arrack. Further I have chosen to believe the evidence of PWs 1 and 2 on this aspect. It was not suggest during the cross examinaiton of PW1 and PW2 that they have any enmity towards the accused to fish a case against him. Thus the trial court and the lower appellate court is Crl.R.P.No.1401/2001 Page numbers perfectly justified in believing their evidence. Therefore, I find no merit in the above contention of the revision petitioner. No other point is argued before me. Therefore, accepting the evidence of PWs 1 and 2, I hold that prosecution has proved that on February 4, 1997 at about 12.30 p.m. at Puduppadi amsom Valliad desom on the Adivaram- Valliad public road, the accused was found to be carrying a plastic can containing 3 litres of illicit arrack. 7. The next question is whether charge under Section 55(a) will lie against the accused. Section 55(a) deals with imports, exports , transports, transits or possesses liquor or intoxicating drugs. A Single Bench of this court in Sachdanandan v. State of Kerala ( 2006 KHC 1932) has held that Section 55(a) of Abkari Act applies only when a person is in possession of illicit liquor while importing, exporting or transporting it. When there is mere possession of illicit liquor Section 58 would be applicable. In the present case, the accused was found in possession of 3 litres of illicit Arrack which comes within the purview of Section 58 of the Abkari Act i.e. mere possession of illicit liquor. In the light of the principles laid down in the above decision, the conviction of the revision petitioner under Section 55(a) of Abkari Act Crl.R.P.No.1401/2001 Page numbers is not legally sustainable and is hereby set aside. Instead she is convicted under Section 58 of Abkari Act. Point No.2 8. The revision petitioner was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 25,000/-, in default, to undergo simple imprisonment for 45 days by the trial court under Section 55(a) of the Abkari Act which is confirmed in appeal. I have converted the conviction into Section 58 of the Abkari Act. The punishment prescribed under Section 58 of the Abkari Act prior to the amendment is a fine which shall not be less than 15,000/- and imprisonment for a term which may extend to one year. The incident occurred on 4-2-1997. Further the accused is a lady. Taking into consideration all these aspects, I feel that imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 55(a) of Abkari Act is set aside and she is convicted under 58 of the Abkari Act and is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default , to undergo simple imprisonment for three Crl.R.P.No.1401/2001 Page numbers months. Her bail bonds are cancelled. One month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 30-11-2009 to suffer the sentence. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1401/2001 Page numbers