IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Crl.Rev.Pet.No. 2840 of 2004(A) ------------------------------- CRA.12/2001 of ADDL.SESSIONS COURT, PARAVUR ST.2130/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER/APPELLANT/ACCUSED ----------------------------------------------------------- BABU K.S., S/O. SEBASTIAN, KAROTTUKUZHY VEEDU, NETHAJIROAD, THEVAKAD DESOM, ALUVA. BY ADVS. SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT/RESPONDENT/COMPLAINANT --------------------------------------------------------------- STATE OF KERALA, REP.BY EXCISE INSPECTOR IN OR 27/96 OF ALUVA RANGE), REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. ---------------------------------------------------------- CRL.R.P.No. 2840 of 2004 ---------------------------------------------------------- Dated this the 13th day of December, 2011 ORDER This revision petition is preferred assailing the legality, correctness and propriety of the judgment dated 4/9/2003 in Criminal Appeal No.12/2001 on the file of the Additional Sessions Judge, North Paravur whereby the conviction and sentence in S.T.Case No.2130/1996 on the file of the Judicial First Class Magistrate-I, Aluva against the appellant under Section 55(i) of the Abkari Act were confirmed. 2. The prosecution case is that at 1.00 pm on 24/8/1996, PW1 the Excise Inspector, Aluva Range found the revision petitioner handling illicit arrack in Ward No.12, near the house of the Vadakkedathu Manoharan. Seeing PW1 and party, the revision petitioner took to his heels. Though, PW1 chased the revision petitioner, he was not successful. Returning to the spot, on examination, it was found that the revision petitioner had been handling 37 packets, each containing 100 milli litres of arrack, inside a tin, which was marked as MO3. The contraband was seized for which Ext.P1 seizure mahazar wherein PW2 is an attestor was prepared. Contents in one of the packets was taken as sample and sealed in a bottle. It was forwarded to the Chemical Examiner who reported by Ext.P3 that the sample contained 36.6% by volume of Ethyl Alcohol. CRL.R.P.No. 2840 of 2004 2 After completing the investigation, charge sheet was submitted by PW3, the successor of PW1 alleging offence under Section 55(i) of the Abkari Act. 3. Responding to the process issued, the revision petitioner entered appearance before the learned Magistrate and pleaded not guilty. Therefore, he was sent for trial. PW1 to 3 were examined and Ext.P1 to P4 were marked. Material Objects 1 to 3 were marked. The revision petitioner took a defence of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilt consequent to which the revision petitioner was convicted and sentenced to rigorous imprisonment for 3 months with a fine of Rs.25,000/-. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.12/2001 before the Additional Sessions Judge, North Paravur, who by the impugned judgment dated 4/9/2003 confirmed the conviction and sentence. Now this revision petition. 4. I have heard Adv.Sri.Vinod Kumar.C.Y, the learned counsel appearing for the revision petitioner and Adv.Sri.Reji Joseph, the learned Government Pleader and perused the judgment impugned as well as the evidence on record. 5. To arrive at a conclusion against the revision petitioner, the Courts below relied upon to the evidence of PW1. Though PW2 was also a witness to the seizure, he did not support the prosecution in full. He admitted his signature in Ext.P1 seizure mahazar. Though revision petitioner could not be arrested on the spot, according to PW1, he was identified by PW2 and others. PW2 is admittedly a neighbour of the CRL.R.P.No. 2840 of 2004 3 revision petitioner. Therefore, the reason that persuaded PW2 to turn hostile is very evident. But for that reason, Ext.P1 cannot be rejected. PW2 is a right person to identify the revision petitioner. Going by the evidence of PW1, there is no reason to disbelieve him. The Courts below had correctly appraised the evidence. I find no error, illegality or impropriety in the findings of the Courts below to come to a conclusion of guilt. The conviction under challenge is based upon cogent evidence and requires no interference in revision. 6. As regards sentence, I find that the substantive sentence is within the power of the learned Magistrate and quite appropriate. But the learned Magistrate exceeded his limit in imposing fine. As on the date of the trial, the powers of the Judicial Magistrate of First Class to impose fine is limited to Rs.5,000/-. Therefore, I find that the fine imposed by the learned Magistrate is beyond the powers and requires interference. In the result, this revision petition is allowed in part. While confirming the conviction and substantive sentence, the fine imposed is reduced to Rs.5,000/- with a default sentence of simple imprisonment for one month. The Trial Court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE su