IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 279 of 2002(A) ----------------------------- CC.120/1996 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM CRA.323/1999 of SESSIONS COURT, KOZHIKOE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------------------------- PUTHENPURAYIL ASHOKAN, S/O.POKKAN, EDACHERY AMSOM DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINAT: ------------------------------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR ADV. SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: vkm THOMAS P. JOSEPH, J. ------------------------------ CRL. R.P.No. 279 of 2002 ------------------------------ Dated this the 14th day of October, 2008 O R D E R Revision petitioner, it is alleged, imported illicit liquor into the state and faced trial for offence punishable under Section 55(a) of the Abkari Act (for short, 'the Act') and Rule 9 of Foreign Liquor Rules ( for short, 'the FL Rules'). He was found guilty, convicted and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs. 25,000/-. Conviction and sentence were confirmed in the appeal. Hence, this revision. 2. Heard both sides. 3. Perused records. 4. Case is that on 27/01/1996 at about 2.10 P.M while PW1 and party were engaged in checking vehicles at Kayipanachi bus stop enroute from Mahe to Kozhikode to prevent illicit importing of liquor into the state, they checked bus No. KRC 9669 and found the revision petitioner carrying Indian Made Foreign Liquor in eight (8) bottles. On the bonafide belief that revision petitioner is importing liquor into the state without valid authority and since revision petitioner was not CRL. R.P.No. 279/2002 2 able to explain his possession of the same, he was arrested at the spot. PW1 collected one of the bottles as sample and the same as well as the remaining seven bottles were packed, sealed and labels containing the signature of revision petitioner as well were affixed. The same were taken to custody as per Exhibit P3. Exhibit P1, crime and occurrence report was prepared by PW1. Exhibit P2 is the list of contraband said to have been found on search. Assistant Excise Inspector is said to have produced the material objects in the court concerned on 29/01/1996. The sample was sent for chemical examination. In the analysis, it was revealed the sample contained 43.05 % volume of Ethyl Alcohol. PWs 1 and 2 gave evidence regarding the alleged seizure and identified M.O.1 series, the 7 bottles containing Indian Made Foreign Liquor. PW3 is the driver of bus. Though he admitted that the bus was searched on the relevant day and time by the Excise officials and the contraband was seized from the bus as per Exhibit P3, and though he admitted attesting of Exhibit P3, pleaded ignorance whether the contraband was seized from the possession of revision CRL. R.P.No. 279/2002 3 petitioner. It is contented by learned counsel for revision petitioner that evidence of PWs1 and 2 is not sufficient to conclude that revision petitioner was in possession of the contraband. It is further contented that at any rate, evidence of PW1 would show that label on the liquor bottles revealed that it was meant for sale in Kerala State. PW1 had not conducted any investigation into that. According to the learned counsel, without conducting any investigation into the source, conviction of the revision petitioner for offence charged against him cannot be sustained. 5. In the course of evidence PW1 stated that the label on the bottles read that the contraband was for sale in Kerala state. He did not investigate into that or the source of the contraband. But he stated that none of the bottles contained the security sticker required to be affixed for liquor sold in Kerala nor did the label contain the facsimile of signature of the Excise Commissioner. It is from that, PW1 came to the conclusion that what is imported by the revision petitioner is illicit liquor manufactured beyond the state. Rule 26 of the FL Rules CRL. R.P.No. 279/2002 4 requires that bottle containing liquor kept for sale (obviously in the state of Kerala) should have security labels containing the state emblem and facsimile of signature of the Excise Commissioner. No such label could be seen on the bottles involved in this case . Therefore, failure to investigate into the source of the contraband cannot said to be fatal. 6. It is further contented that PW1 had not ascertained or investigated where from revision petitioner boarded bus or which was his destination. It is also contended that PW1 did not take into custody the ticket with which revision petitioner was allegedly traveling in the bus. 7. It is not disputed by the revision petitioner that he travelled in the bus in question, his only contention being that the contraband left abandoned in the bus was seized and he was falsely implicated. Regarding the boarding place and destination of the revision petitioner there is the evidence of PW1, supported by Exhibit P3 that revision petitioner had told PW1 that he had collected the contraband from Pallur in Pondichery state and that it was meant for CRL. R.P.No. 279/2002 5 sale at Kakat Bazar (in Kerala state). There is no reason to think that revision petitioner has been falsely implicated in the case. There is no reason to interfere with conviction of the revision petitioner. 8. So far as sentence awarded to the revision petitioner is concerned, total quantity of IMFL he possessed is only three litres. It is not shown that revision petitioner was involved in any other case either before or after the incident in this case. Counsel submitted that revision petitioner was aged 32 years at the time of incident. It is also pointed out by learned counsel that unable to comply with conditions imposed by this court while suspending sentence, he has already undergone sentence for altogether 10 days. In the circumstances, I am inclined to think that the period of substantive sentence can be confined to the period of imprisonment already undergone. In the result, revision petition is allowed in part in the following lines. 1. substantive sentence awarded to the revision petitioner is confined to the period of imprisonment already undergone CRL. R.P.No. 279/2002 6 by him. In any other respects, judgment of the courts below require no interference. Amount of fine if any, deposited by the revision petitioner will be adjusted in the total amount of fine payable. Revision petitioner is granted three months time to pay the fine. Bail bond is cancelled. Criminal Miscellaneous Petition No.2210 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm