IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 658 of 2001() ----------------------------- CRA.58/1997 of SESSIONS COURT, KASARAGOD ST.1153/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... PETITIONER: ------------------- BELANGAT KRISHNAN, AGED 48 YEARS, S/O.APPA, PULLOOR VILLAGE, HOSDURG TALUK, KASARAGOD DIST. BY ADV. SRI.M.RAMESH CHANDER SRI.M. VIJAYA KUMAR RESPONDENTS: ------------------------- 1. EXCISE INSPECTOR, HOSDRUG RANGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.N.3152/2001 IN CRL.R.P.NO.658/2001 DISMISSED 17/09/2008 SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 658 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R On the charge that on 18.10.95 at about 5.30 p.m. the revision petitioner was found in possession of 3 litters of illicit arrack in a 5 litre capacity plastic can and utensils which could be used for illicit manufacture of arrack and thereby committed offence punishable under Section 58 of the Abkari Act, the revision petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Hosdurg in STC No.1153/96. The revision petitioner was found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.15,000/-. Revision petitioner preferred an appeal to the Sessions Court, Kasargod. (Crl.A. No.58/97). When the appeal was taken up for hearing, the counsel for the appellant remained absent and there was no representation on his behalf. The appeal was dismissed by the learned Sessions Judge confirming the conviction and sentence. It is in challenge of the judgments of the courts below that this revision petition is filed under Section 397 Cr.P.C. Crl.R.P. No. 658/2001 -:2:- 2. The only challenge in this revision petition as seen from the grounds urged is that the learned Sessions Judge was not justified in dismissing the appeal for default ignoring the various decisions of this Court. I went through the judgment of the learned Sessions Judge and find that it is not a case of the appeal being dismissed for default. It is seen that though not in so many words, the learned Sessions Judge has stated that on perusing the records and hearing the Public Prosecutor, there was no reason to interfere with the finding of the trial court which was based on the testimony of PW1 and Exts.P1 and P2. Therefore it is idle to contend that the appeal was dismissed for default. 3. So far as the concurrent finding against the revision petitioner is concerned PW1; the detecting officer has given evidence that on the day and time and at the place of occurrence, the revision petitioner was seen carrying the contraband in a 5 littre capacity plastic can along with utensils which PW1 seized from the revision petitioner as per Ext.P1, seizure mahazar. The seizure mahazar was prepared in the presence of PWs 2 and 3, according to the prosecution. They did not support the prosecution, but admitted their Crl.R.P. No. 658/2001 -:3:- signature in Ext.P1. PW2 says that the revision petitioner is his neighbour. PWs 2 and 3 may have justifiable reason not to support the prosecution. But that did not mean that the evidence of PW1 has to be ignored. Corroboration for evidence of PW1 comes from Ext.P1. 4. It is seen from the records that though the incident was on 18.10.95, the material objects were produced in the trial court only on 14.03.96. Ext.P3, report of the chemical examination states that the sample was sent to the laboratory from the court concerned vide letter dated 14.03.96. 5. True, there is delay in producing the material objects in the court. But, for the mere reason of delay even if it is assumed that it was on account of any willful act or negligence on the part of PW1 or PW4, the case of the prosecution cannot be thrown out. The court has to consider whether the delay in production of the material objects in court has caused any prejudice to the revision petitioner. Going through the evidence of PWs 1 and 4, I find that there is no challenge to the identity of the material objects. On the other hand, PW1 has given evidence that at the time of seizure itself he had Crl.R.P. No. 658/2001 -:4:- affixed labels containing signatures of PWs 2 & 3 as well on the material objects. There was not even a suggestion that the labels were not available on the material objects at the time of trial. Nor was there any suggestion that the material objects were tampered with while it was in the custody of PW4. Therefore delay in production of the material objects in the case on hand is not fatal. 6. The finding of the court below that the accused was in possession of illicit arrack along with utensils rests on the testimony of PW1 which gets corroboration from Ext.P1 and to some extent at least, from the evidence of PWs 2 &3. There is little reason to interfere. No interference is required with the sentence awarded as well. The revision petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE ttb