IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.Rev.Pet.No. 2040 of 2009() ------------------------------ CRA.370/2008 of ADDITIONAL SESSIONS JUDGE (SPECIAL COURT FOR NDPS ACT CASES), THODUPUZHA SC.151/2007 of ASSISTANT SESSIONS COURT, KATTAPPANA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- GOPALAN, S/O. SEKHARAN, THENPANVILA VEEDU, KARUNAPURAM VILLAGE. BY ADV. SRI.C.K.VIDYASAGAR SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENT/STATE: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2040 of 2009 -------------------------------------- Dated this the 26th day of June, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Special Court for NDPS Act Cases), Thodupuzha in Crl.Appeal No.370 of 2008 confirming conviction of the petitioner for offence punishable under Section 8(1) and (2) of the Abkari Act (for short, “the Act”) but modifying the sentence of imprisonment. 2. Case is that on 25.7.2006 at about 6.30.p.m. on the side of road at the place occurrence petitioner along with accused No.2 were found engaged in unauthorized sale of illicit arrack. On getting information about that PW4, Sub Inspector and party reached there and detected the offence. Learned Assistant Sessions Judge before whom the case was tried found that prosecution did not prove its case against accused No.2 and acquitted him. Petitioner was convicted and sentenced to undergo simple imprisonment for three years and payment of fine of Rupees one lakh, in default of payment to undergo simple imprisonment for three months. In appeal the substantive sentence was modified as simple imprisonment for six months. It is contended by learned counsel that conviction of the petitioner is not legal and proper. 3. Ext.P1 is the mahazar said to be preferred by PW4, detecting officer. PWs 1 and 2 are independent witnesses and attestors in Ext.P1. Crl.R.P.No.2040/2009 2 Though they admitted signing Ext.P1 refused to support prosecution. PW4, Sub Inspector is said to have detected the offence. PW3, Constable who claimed to have accompanied PW4. PWs 3 and 4 stated that on getting information that petitioner is engaged in sale of illicit arrack, they reached the place of occurrence on the day of incident at about 6.30 p.m. and found petitioner carrying five litres of illicit arrack in a plastic can. Accused No.2 was holding a glass tumbler (MO2). Petitioner and accused No.2 were arrested at spot. Exts.P2 and P3 are the arrest memos. PW4 seized the contra band, collected sample from it and the same as well as rest were properly packed, labeled and sealed . The same as well as MO2, tumbler allegedly carried by accused No.2 were seized as per Ext.P1. Ext.P7 is the report of chemical examination which stated that the sample contained ethyl alcohol. Petitioner examined DW1. He stated that on the day of incident at about 6.30 p.m. petitioner and accused No.2 were engaged in a wordy altercation in front of his shop. Sub Inspector came there and asked petitioner and accused No.2 to go away but they refused. Thereon petitioner and accused No.2 were taken by the Sub Inspector in his jeep. DW1 was cross examined by learned Additional Public Prosecutor. In cross examination he pleaded ignorance whether the Sub Inspector had seized the contraband at the place of occurrence. Courts below were not inclined to believe the evidence of DW1 and found the petitioner guilty. 4. It is true that petitioner has a different version as to how he was taken to custody and in proof of that, examined DW1. But merely for the reason that DW1 has given a different version, evidence of PWs 3 and 4 cannot Crl.R.P.No.2040/2009 3 be ignored if it is otherwise acceptable. Nor am I inclined to think that because PWs 1 and 2 did not support prosecution, its case should fail. Question of acceptability of the case of the prosecution depends on the acceptability of the evidence given by its witness. PW4, Sub Inspector and PW3, Constable are witnesses to the incident. They have given evidence. There is no reason to think that petitioner and accused No.2 were taken to custody in the circumstances stated by DW1 and assuming so, a case of this nature was foisted on them. There is no evidence to show that PWs 3 and 4 or any other police official had an axe to grind against petitioner or accused No.2, so that, they are falsely implicated. Courts below considered and assessed the evidence and found that the version of DW1 cannot be accepted. I do not find reason to interfere with that finding in revision. 5. So far as sentence is concerned appellate court modified the substantive sentence as simple imprisonment for six months but the fine as well as default sentence were confirmed. Offence under Section 8(1) and (2) of the Act is punishable with imprisonment upto to ten years and with fine which shall not be less than Rupees one lakh. No minimum imprisonment is provided. Learned Assistant Sessions Judge observed that petitioner was aged 42 years at the relevant time. Learned counsel states that petitioner has a family to look after. Learned Additional Sessions Judge has also taken note of the circumstances stated by petitioner when he was heard on the sentence to be awarded. It is not shown that petitioner is involved in any other case of similar nature. In these circumstances, I am inclined to think that simple imprisonment Crl.R.P.No.2040/2009 4 for two months is sufficient in the ends of justice. For the same reason, the default sentence provided for non-payment of fine can also be modified as simple imprisonment for one month. Resultantly, this revision is allowed in part to the following extent: i. Imprisonment awarded to the petitioner is modified as simple imprisonment for two months. ii. Default sentence provided for non-payment of fine is modified as simple imprisonment for one month. iii. Period of detention if any undergone by the petitioner in connection with this case shall be set off against the substantive sentence awarded. THOMAS P.JOSEPH, Judge. cks