IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.Rev.Pet.No. 1446 of 2001() ------------------------------ CRA.451/1998 of ADDL.SESSIONS COURT, KOZHIKODE CC.378/1997 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): --------------------- JANAKI, W/O.RAGHAVAN PUNATHIL,, PANAKKAD DESOM KOOTHALI AMSOM BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. CRL. R.P. NO. 1446 OF 2001 ORDER 10TH MARCH, 2010 P.S.GOPINATHAN, J. ``````````````````````````````````````````````````````` Crl. R.P. No. 1446 of 2001 ``````````````````````````````````````````````````````` Dated this the 10th day of March, 2010 O R D E R The revision petitioner was prosecuted by the Excise Inspector, Excise Range, Perambra, alleging offence under Section 58 of the Abkari Act before the Judicial Magistrate of First Class-II, Perambra in C.C.No.378/1997. It appears that the learned Magistrate had taken cognizance under Section 55(a) of the Abkari Act. The complaint was filed with an allegation that on 26-12-1995 at 5 PM while the Excise Preventive Officer attached to the Perambra Excise Range was moving on patrol duty along with officials at Panakkad Desom along a pathway, the revision petitioner was found coming across with a plastic can in her right hand. No sooner than the revision petitioner saw PW1 and party, she turned back and attempted to escape from the scene. PW1 and party intercepted the revision petitioner. On inspection, it was found that the revision petitioner had been carrying a can of 10 litre capacity with full of liquid. By smell and taste, it was satisfied that the liquid contained in the can was illicit arrack. The revision Crl.RP.No.1446/2001 : 2 : petitioner was arrested then and there. The plastic can with the contraband liquid was seized. Out of the liquid, 180 ml was taken as sample in a bottle. The bottle was sealed then and there for which Ext.P1 mahazar was prepared wherein PWs 2 and 3, two independent witnesses, were attestors along with PW4, a Guard. The revision petitioner along with contraband article and the seizure mahazar was produced before the Excise Inspector, who registered a case as Crime No.192/1995 by Ext.P2 occurrence report. The sample was forwarded to the chemical examinor for analysis and obtained Ext.P5 report wherein it is certified that the sample contained 22.3% by volume of Ethyl Alcohol. After completing the investigation, complaint was filed before the learned Magistrate. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P5 and MO1 were marked. When the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure, she took a defence of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty for offence under Section 55(a) of the Abkari Act. Consequently, the revision Crl.RP.No.1446/2001 : 3 : petitioner was convicted and sentenced to simple imprisonment for one month. Though she preferred Crl.Appeal No.451/1998 before the Sessions Judge, Kozhikode, she was unsuccessful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. PW1, the Excise Preventive Officer, who arrested the revision petitioner and seized the contraband liquid, had given evidence in support of the allegations in the complaint. Though he was subjected to a searching cross examination, no material was disclosed to disbelieve him. There is nothing on record to come to a conclusion that PW1 was any way motivated to register a false case against the revision petitioner. PWs 2 and 3 though admitted their signature in Ext.P1, did not support the arrest and seizure. Whereas PW4, the Excise Guard, had given evidence corroborating with the evidence of PW1. The courts below had carefully analysed the evidence and arrived at a conclusion that the evidence of PWs 1 and 4 supported by Ext.P1 is credible. I find little reason to disturb the concurrent finding of fact regarding the arrest and seizure. Crl.RP.No.1446/2001 : 4 : 3. The evidence of PW5 coupled with Ext.P5 would convincingly establish that the liquid that the revision petitioner was carrying in MO1 can is nothing but illicit arrack. In the light of the decision in Surendran Vs. Excise Inspector [2004 (1) KLT 404], I find that the revision petitioner who had been possessing illicit arrack had committed only an offence under Section 58 of the Abkari Act and not an offence under Section 55(a) of the Abkari Act. Hence, I find that no conviction for offence under Section 55 (a) of the Abkari Act is sustainable. Hence, the revision petitioner is liable to be convicted under Section 58 of the Abkari Act. Accordingly, the conviction is altered to one under Section 58 of the Abkari Act from Section 55(a) of the Abkari Act. 4. Taking into account that the revision petitioner was a lady aged 35 years on the date of occurrence and, now for about last 15 years she had been suffering the embarrassment of prosecution and that she belongs to a remote area and the penal provision as on that date, I find that a sentence of imprisonment till rising of court and a fine of Rs.3,000/- would meet the ends of justice. Crl.RP.No.1446/2001 : 5 : In the result, the revision petition is allowed in part, while setting aside the conviction and sentence for offence under Section 55(a) of the Abkari Act, the revision petitioner is convicted for offence under Section 58 of the Abkari Act and sentenced to imprisonment till the rising of the court and a fine of Rs.3,000/- (Rupees three thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for one month. The revision petitioner is granted one month's time to remit the fine. Till then, the bail bond executed by her shall remain in force. Sd/- (P.S.GOPINATHAN, JUDGE) aks // True Copy // P.A. To Judge