IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 1467 of 2001(C) --------------------------------------- CRL. A. NO.16/1999 DATED 4/07/2001 PASED BY THE COURT OF SESSION, KOZHIKODE. C.C. NO.269/1996 DATED 23/12/1998 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM. REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- MOHANAN, S/O.KORAPPAN, KATTILPARAMBIL HOUSE, VENGERI AMSOM AND DESOM OF KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------- THE EXCISE INSPECTOR, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. --------------------------------- CRL.R.P.No. 1467 of 2001 ----------------------------------- Dated this the12th day of December, 2008 O R D E R Revision petitioner was convicted by learned Judicial Magistrate of First Class in C.C No.269/1996 for offence punishable under Section 58 of the Kerala Abkari Act and sentenced to undergo Simple Imprisonment for three months and payment of fine of Rs.15,000/-. In appeal, learned Session Judge confirmed the conviction, but modified the substantive sentence to imprisonment for one month. Revision petitioner is aggrieved and preferred this revision. 2. Heard both sides. 3. Following points arose for consideration; (1) Whether the conviction of revision petitioner is legal and proper? (2) Whether sentence is excessive? 4. Point No.1: Case is that on 8/1/1996 at about 11.30 A.M revision petitioner was found transporting about 5 litres of illicit arrack in a five liter capacity Can along the Vengerykkadu road. Offence is CRL.R.P.No. 1467/2001 2 said to have been detected by PW1, Preventive Officer and Party. PW1 gave evidence in that line and proved Exhibit P1, mahazar for seizure said to be prepared by him. According to PW1, he collected sample from the contraband, the same as well as rest of the contraband in the same plastic Can were properly packed, sealed and taken to custody. MO. 1 is the plastic Can containing rest of the contraband. PW1 claimed that label on M.O.1 contained his personal seal and signature of revision petitioner. PW2, guard claimed to have accompanied PW1 and gave similar evidence and identified M.O.1. PW3 is an attestator in Exhibit P1. He claimed that while he was going along Vengerykkadu road, Excise party asked him to sign Exhibit P1 to evidence that they had been to that place. PW3 admitted that Revision petitioner belonged to his native place. PW4, another attestator in Exhibit P1 also did not support the prosecution. According to revision petitioner, he has been falsely implicated. It is contended that the alleged incident is not proved beyond reasonable doubt. 5. Exhibit P2 is the crime and occurrence report prepared by PW1 on 8/01/1996. Exhibit P3 is the crime and occurrence report CRL.R.P.No. 1467/2001 3 prepared by the Excise Inspector on the same day. Exhibit P4 is the copy of the requisition to send the sample for chemical examination. That document is seen produced in court on 10/01/1996. Exhibit P5, Chemical Examination Report says that the sample contained Ethyl Alcohol. Records revealed that the materials seized were produced in court on 10/01/1996. PWs 3 and 4 have admitted attesting of Exhibit P1. Evidence of PW3 shows that Excise party had been to the place of occurrence on the relevant day. Though it is contended that revision petitioner had been falsely implicated, I do not find reason to think so. Fact of detention of the offence and seizure of the contraband from possession of revision petitioner are proved by the evidence of PWs 1 and 2 which gets corroboration from the documents produced. Thus it is proved that revision petitioner transported illicit arrack on the relevant day and time. Courts below have considered evidence and found him guilty. Conviction does not warrant interference. 6. Point 2: On the submission of learned counsel that revision petitioner is not involved in any other case, I directed the Public Prosecutor to get information regarding that. Learned Public CRL.R.P.No. 1467/2001 4 Prosecutor took instruction from the Excise Inspector and reported that revision petitioner is not involved in any other case before or after the incident on hand. Incident occurred on 8/01/1996 and now almost 13 years have elapsed. Considering the circumstances of the case and also taking note of the fact that learned magistrate imposed imprisonment only for three months and the learned Sessions Judge modified the Simple Imprisonment to one month, I am inclined to think that Simple Imprisonment till rising of the court and fine as awarded by the courts below is sufficient in the interest of justice. Resultantly, this revision petition is allowed in part in the following lines. 1. substantive sentence imposed on the revision petitioner is modified as simple imprisonment till rising of the court. 2. Sentence of fine is retained. 3. If the amount of fine is already deposited, that will be taken note of by the learned magistrate. Revision petitioner is directed to surrender in the trial court on CRL.R.P.No. 1467/2001 5 31/01/2009 to receive the sentence. Bail bond is cancelled. Criminal Miscellaneous Petition No.6900 of 2001 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm