IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH SEPTEMBER 2007 / 4TH ASWINA 1929 Crl.Rev.Pet.No. 895 of 2002() ----------------------------- CRA.437/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.429/1996 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER: PETITIONERS ----------------------------- 1. THOMAS S/O. KURIAKOSE, KOCHUNADAYIL HOUSE, KURICHINILAMPEROORNADAYIL, KURICHI P.O., CHANGANACHERRY TALUK, KOTTAYAM. 2. SURENDRAN. S/O. DAMODARAN, PARUTHIKKADUCHIRA VEETTIL, NEELAMPEROOR, CHANGANACHERY TALUK, KOTTAYAM BY ADV. SRI.IMTHIYAZ AHAMED SRI.SHIRAZ ABDULLA RESPONDENTS: RESPONDENT ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ```````````````````````````````````````````````````` Crl. R.P. No. 895 OF 2002 C ```````````````````````````````````````````````````` Dated this the 26th day of September, 2007 O R D E R The revision petitioners, who are accused Nos.1 and 2 in C.C.No.429/96 on the file of the JFCM-I, Kochi, stand convicted under section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and to pay a fine of Rs.25,000/- and on default to pay the fine, to suffer rigorous imprisonment for six months. 2. The case of the prosecution can be summarised as follows:- On 29.5.96 at about 4.50 p.m. accused Nos.1 to 3 transported 550 litres of toddy in 11 barrels in a tempo van bearing registration No.KEK-8404 along Vypin-Munambam public road from north to south. The offence was detected by PW5, Circle Inspector of Police, Njarakkal Police Station. At the time of detection, A1 was driving the tempo van and A2 styled himself as the cleaner of the van. A3 was found travelling inside the tempo van. The toddy was transported for the purpose of accused Nos.4 and 5 without any permit or valid authorisation. The accused have Crl.R.P.No.895/02 : 2 : thereby committed an offence punishable under section 55(a) of the Abkari Act. Out of the five accused persons, A1, A2, A4 and A5 stood trial. A3 was absconding. 3. On the accused pleading not guilty to the charge framed against them by the court below for the aforesaid offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as PWs 1 to 5 and got marked 8 documents as Exts.P1 to P8. 4. After the close of the prosecution evidence, the accused were questioned under section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The revision petitioners contended that they were the driver and cleaner of a stage carriage bus and they were requested by A3 to transport toddy in his tempo van under a valid permit and they were obliging A3 under the bona fide belief that the toddy in question was being transported under a valid permit. 5. On the side of the defence, A5 got himself examined as DW1. Crl.R.P.No.895/02 : 3 : 6. The learned Magistrate after trial, acquitted accused Nos.4 and 5 but convicted revision petitioners(accused Nos.1 and 2) and sentenced them as aforesaid. 7. On appeal preferred by the revision petitioners as Crl.Appeal No.437/99 before the V Additional Sessions Court, Ernakulam, the said court dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioners. Hence this revision. 8. The learned counsel appearing for the revision petitioners submitted that the revision petitioners are hailing from poor circumstances and they were obliging A3 who requested them to transport toddy under a valid permit in his tempo van and accordingly A1 and A2(revision petitioners) were transporting the same under the bona fide belief that the toddy in question was being transported under a valid permit. In fact, the permit was produced before the police, but they had suppressed the same with a view to frustrate the defence available to the revision petitioners. 9. Both the courts have considered the defence set up by the revision petitioners. Except for the self serving statement Crl.R.P.No.895/02 : 4 : made by the revision petitioners there was no material adduced to show that the toddy in question was being transported under a valid permit. It was after a careful evaluation of the oral and documentary evidence that the courts below have recorded the conviction against the revision petitioners. This court, sitting in the rarefied revisional jurisdiction, will be loathe to re-appreciate the evidence and come to a different conclusion even if it were possible. The conviction was rightly entered against the revision petitioners and is accordingly confirmed. 10. What now survives for consideration is the question regarding the legality or otherwise of the sentence imposed on the revision petitioners. Eventhough the revision petitioners could not succeed in the defence set up by them, the abscondance of the 3rd accused and the acquittal of accused Nos.4 and 5 indicates that the petitioners might have fallen a prey to the vicious circle of abkari contractors who were making profit by exploiting the poverty of the revision petitioners. The offence was committed prior to the amendment of section 55(a) of the Abkari Act. Considering the entire facts and circumstances of the case, I do not think that the revision petitioners deserve rigorous imprisonment for one year for Crl.R.P.No.895/02 : 5 : the offence. Accordingly, the sentence imposed on them by the courts below is modified. For the conviction under section 55(a) of the Abkari Act, each of the revision petitioners(A1 and A2) is sentenced to rigorous imprisonment for six months and to pay a fine of Rs.25,000/-(Rupees twenty five thousand only) and on default to pay the fine, they shall suffer rigorous imprisonment for three months. In the result, this revision petition is disposed of confirming the conviction but modifying the sentence as above. (V. RAMKUMAR, JUDGE) aks Crl.R.P.No.895/02 : 6 : V. RAMKUMAR, J. ```````````````````````````````````````````````````` Crl. R.P. No. 895 OF 2002 C ```````````````````````````````````````````````````` O R D E R 26th day of September, 2007