IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.Rev.Pet.No. 1048 of 2001(C) ------------------------------ CRA 150/1998 OF SESSIONS COURT, KOZHIKODE. CC.479/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- ROSAMMA JOSE, VALIAPLAKKAL HOUSE, KOOMPARA BAZAR P.O., KOODARANJI (VIA), KOZHIKODE DISTRICT. BY ADV. SRI.K.BABU THOMAS MARYKUTTY BABU RESPONDENT(S): RESPONDENTS - COMPLAINANT --------------- 1. STATE OF KERALA REP, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, KUNNAMANGALAM EXCISE RANGE, KOZHIKODE. BY PUBLIC PROSECUTOR SRI JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL. R.P. 1048 of 2001 -------------------------------------- Dated: SEPTEMBER 7, 2009 ORDER The accused in C.C.No.479/1996 of Judicial First Class Magistrate II, Thamarassery, who is the appellant in Crl.A.No.150/1998 of III Addl. Sessions Court, Kozhikode, is the revision petitioner. She challenges her conviction under sec.58 of the Abkari Act and sentence to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.15000/-, in default to undergo a further period of simple imprisonment for two months which is confirmed in appeal. 2. The case of the prosecution as testified by PW.2, the then Excise Inspector of Kunnamangalam Range, and PW.4, the Preventive Officer of Kunnamangalam Excise Range, before the trial court is that on August 7, 1996, at about 8 a.m. while they were conducting patrolling duty along Kooderanhi amsom and desom of Kozhikode taluk, the accused was found carrying two litres of illicit arrack in a plastic cannas having a capacity of 5 litres and that thereby committed an offence punishable under sec.58 of the Abkari Act. CRL. R.P. 1048 of 2001 2 3. Pws.1 to 4 were examined and Exts.P1 to P4 were marked and M.O.1 was produced on the side of the prosecution before the learned Magistrate. When questioned by the trial court, the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused/revision petitioner guilty, convicted her and sentenced her as aforesaid. The lower appellate court confirmed the said conviction and sentence. Now the accused has come up in revision. 5. The main question which arises for consideration is whether the conviction of the revision petitioner by both the courts below and the sentence imposed can be sustained. 6. The counsel for the revision petitioner mainly argued that the search conducted by the detecting officer, PW.2, cannot be acted upon as the same was not made in compliance with the mandatory requirement of the proviso to sec.36 of the Abkari Act. The proviso to sec.36 of the Abkari Act provides that the persons called upon to attend and witness such searches shall include atleast two persons, neither of which is an Abkari, Police CRL. R.P. 1048 of 2001 3 or Village Officer. The counsel for the revision petitioner citing the decision in Ramachandran Nair v. State (1990 (1) KLT 44) argued that the compliance of the said proviso to sec.36 is mandatory unless the non-compliance of the same was explained by the detecting officer. But referring to the above decision and relying on Babulal Hargovindas v. State of Gujarath (AIR 1971 Supreme Court 1277) a Division Bench of this Court in Madhavan v. Excise Inspector (2000 (1) KLT 311) has held that sec.36 of Abkari Act only provides safeguard to accused during search and even if there is infraction, that will not vitiate trial if materials brought on record justify the conviction. In the present case the evidence of Pws.2 and 3 prove beyond doubt the search and recovery of illicit liquor from the accused. The trial court as well as the lower appellate court has chosen to accept their evidence on convincing and cogent reasons. I find no reason to disbelieve their evidence. Therefore in the light of the principles laid down in Babulal's case (supra) and in Ramachandran Nair's case (supra), I hold that non-compliance of the proviso to sec.36 of the Abakari Act in this case does not vitiate the trial. Therefore the above argument advanced by the CRL. R.P. 1048 of 2001 4 counsel for the revision petitioner has only to be rejected. 7. No other point is argued before me. I have gone through the evidence of Pws.2 and 3 and the judgments of the trial court and the lower appellate court. The trial court as well as the appellate court have believed the evidence of Pws.2 and 3 and found that the prosecution has succeeded in proving that the accused was found to be in possession of two litres of illicit arrack on August 7, 1996 at about 8 a.m. at Koodaranhi, Kozhikode. I find no materials to come to a different conclusion. That being so, I uphold the conviction of the accused by the trial court under sec.58 of the Abkari Act which is confirmed in appeal by the lower appellate court. 8. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months and a fine of Rs.3000/-. The Appellate Court confirmed the said sentence. The revision petitioner is a lady. It is submitted by the counsel for the revision petitioner that she has three minor children. She was in possession of only two litres of illicit arrack. Further, the incident occurred on 7.8.1996 and during that time the punishment prescribed under sec.58 of the Abkari Act was a fine CRL. R.P. 1048 of 2001 5 of Rs.15000/- and imprisonment for a term which may extend to one year. Taking into consideration all these facts and in the circumstances of the case, I feel that a sentence of fine of Rs.3000/- would meet the ends of justice, in default the accused is directed to undergo simple imprisonment for two months. In the result revision petition is allowed in part. The conviction of the revision petitioner under sec.58 of the Abkari Act by the trial court, which is confirmed by the appellate court is upheld. The sentence is modified to the effect that the revision petitioner is sentenced to pay a fine of Rs.3000/-, in default to undergo simple imprisonment for two months. Two months time is granted to pay the fine. P.Q. BARKATH ALI, JUDGE mt/-