IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 2979 of 2003() ------------------------------ CRA.422/2001 of III ADDL. SESSIONS COURT (ADHOC-I), THRISSUR ST.2077/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- 1. THANKAPPAN, S/O.ARACKAL SANKARAN, CHERPU, THRISSUR DISTRICT 2. SHIBU, S/O.KOZHIKATTIL KUTTAPPAN, PITHUR, KAINUR, THRISSUR DISTRICT BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.2979 OF 2003 --------------------------------------------- Dated 2nd August, 2010 O R D E R Petitioners are accused 1 and 2 in S.T.2077/1996 on the file of Judicial First Class Magistrate-III, Thrissur. They were convicted and sentenced to simple imprisonment for three months and fine of Rs.25,000/- and in default simple imprisonment for six months each for the offence under Section 55(a) of Abkari Act. Third accused was acquitted finding that prosecution did not establish that he was owner of the vehicle. Petitioners challenged the conviction and sentence before Sessions court, Thrissur in Crl.A.422/2001. Learned Additional Sessions Judge on re-appreciation of evidence CRRP 2979/03 2 confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that there is no independent evidence to prove that petitioners were transporting contraband liquor and relying on the evidence of Pws.1 to 3 alone, courts below should not have convicted them. It was argued that petitioner is the driver and second petitioner is the cleaner of the lorry and contraband article was seized from the built in tank concealed in the vehicle and in the absence of evidence to prove that it was concealed with the knowledge of the petitioners, petitioners should not have been CRRP 2979/03 3 convicted. Finally, learned counsel argued that as the incident occurred in 1996, substantive sentence may be avoided. 4. Learned Public Prosecutor pointed out that Ext.P3 certificate of chemical analysis establish that contraband article contained 94.64% by volume of Ethyl Alcohol and there is no reason to interfere with the conviction or the sentence. 5. Prosecution case is that on 17/9/1996 at about 11.15 p.m lorry KL-7/L-3427 was found parked on the side of National Highway in front of Indian Coffee House at Mannuthy. First petitioner was the driver and second petitioner, the cleaner. Getting suspicious Pws.1 to 3 Excise Officials checked the vehicle and it was found that vehicle was not having any valid license or permit. When lorry was examined, it was found that in two CRRP 2979/03 4 tanks 2000 liters of spirit was being transported. The spirit in the vehicle was seized and Ext.P1 mahazar was prepared and three representative samples were also taken. Petitioners were arrested. Samples were produced in court and sent for chemical analysis and obtained Ext.P3 report. Under Ext.P2 occurrence report case was registered. On the final report being filed, learned Magistrate took cognizance of the offence under Section 55(a) of Abkari Act. Petitioners and third accused pleaded not guilty. Prosecution examined four witnesses and marked three exhibits. Petitioners did not adduce any evidence. They did not explain possession of the spirit found in the vehicle, when questioned under Section 313 of Code of Criminal Procedure. Learned Magistrate accepted the evidence of Pws.1 and 4 and found that CRRP 2979/03 5 petitioners were possessing 2000 liters of spirit in violation of the provisions of the Abkari Act and Rules and therefore, convicted them for the offence under Section 55(a) of Abkari Act. Learned Sessions Judge appreciated the evidence and confirmed the findings. 6. Learned counsel argued that when Pws.3 and 4 independent witnesses to Ext.P1 mahazar turned hostile to the prosecution, evidence of Pws.1 and 2 should not have been accepted. I have gone through the evidence of Pws.1 and 2 and Ext.P1 mahazar. No material contradictions were pointed out. Fact that independent witness to the scene mahazar turned hostile to the prosecution, does not mean that evidence of an Excise Officials is to be disbelieved. There is no rule or law that evidence of an Excise Official or a police officer is either to be disbelieved or to be CRRP 2979/03 6 viewed with suspicion. Evidence of Pws.1 and 2 is fully corroborated by Ext.P1 mahazar. Courts below on proper appreciation of evidence accepted the evidence of Pws.1 and 2 and found that petitioners being, the driver and cleaner of the lorry KL-7/L-3427, were transporting 2000 liters of spirit when it was detected at about 11.15 p.m on 17/9/1996. 7. Ext.P3 report establishes that it is spirit. In such circumstances, conviction of the petitioner for the offence under Section 55 (a) of Abkari Act is perfectly legal. 8. Then the only question is with regard to the sentence. Considering the huge quantity of spirit being transported, I find no reason to interfere with the sentence also. Even though sentence as on the date of commission of the offence is punishable with imprisonment for a term which may extend to CRRP 2979/03 7 two years, learned Magistrate sentenced the petitioners only to simple imprisonment for three months. Fine of Rs.25,000/- is the minimum fine provided under the Abkari Act. In such circumstances, there is no reason to interfere with the conviction or the sentence. Revision is dismissed. Petitioners are directed to appear before the Judicial First Class Magistrate-III, Thrissur on 12/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.