IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.Rev.Pet.No. 362 of 2002(A) ------------------------------------------ CRL.A.266/1998 OF ADDL. SESSIONS COURT, ALAPPUZHA. CC.NO.141/1997 OF JUDL.MAGISTRATE OF FIRST CLASS, RAMANKARI, .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- KAMALAKANTHAN, S/O.KARUNAKARAN, KAMALALAYAM VEETTIL, KUMARANKARI MURI, VELIYANAD VILLAGE. BY ADV. MR.T.G.RAJENDRAN. RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- 1. THE EXCISE INSPECTOR, KUTTANAD RANGE. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO.362/2002-A: ORDER ON CRL.M.P. NO. 2583/2002 IN CRL.R.P. NO. 362/2002-A DISMISSED 20/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.362 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.141/1997 of Judicial First Class Magistrate Court, Ramankary and appellant in Crl.Appeal No.266/1998 of Additional Sessions Court (Fast Track), Alappuzha. He was convicted under Section 55(a) of Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 25,000/-, in default, to undergo simple imprisonment for three months which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on March 23, 1997 at about 6 p.m. he was found to be carrying 1 ½ litres of illicit arrack in a jerry can at Kumarankary and that thereby committed the offence punishable under Section 55(a) and 58 of Abkari Act. 3. The accused on appearance before the trial court pleaded not guilty to a charge under Section 55(a) and 58 of Abkari Act. Crl.R.P.No.362/02 Page numbers PWs 1 to 3 were examined and Exts.P1 to P4 and MO1 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C by the trial court, the accused denied the entire incident and submitted that one Gopalakrishnan and his labourers were drinking liquor in his paddy field, that on seeing the excise party, they ran away leaving the jerry can containing the liquor and that he was falsely implicated in this case due to previous enmity. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 55(a) of Abkari Act, convicted him thereunder and sentenced him as aforesaid. The trial court has found that though accused was charged under Section 55(a) and 58 of Abkari Act, as the offence is only possession of illicit arrack, he was convicted under Section 55(a) and not under Section 58. Now the accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor appearing for the State. Crl.R.P.No.362/02 Page numbers 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(a) of Abkari Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PWs 1 to 3 were examined and Exts.P1 to P4 and MO1 were marked on the side of the prosecution to prove the guilt of the accused. PW1 was the then Excise Inspector of Kuttanad Range at the relevant time. PW2 was the then Preventive Officer. PW3 was the then Excise Inspector who detected the offence. PW2 and PW3 gave a consistent version regarding the seizure of contraband articles from the accused. No serious discrepancies or contradictions were pointed out in their evidence. Further it was not proved that they have any enmity towards the accused to foist a false case against him. Ext.P3 mahazar was prepared by PW3 . Therefore, in my view the trial court as well as Crl.R.P.No.362/02 Page numbers the lower appellate court is perfectly justified in believing the evidence of PWs 2 and 3 regarding the search and seizure of contraband articles from the accused. Ext.P2 the report of the Chemical Analyst shows that the sample was illicit arrack. 8. The main argument advanced by the counsel for the revision petitioner was that there was considerable delay in producing the material objects before the court and that there is no evidence to show that the sample analysed by chemical analyst was the sample taken from the accused. I am unable to agree. Merely there is some delay in producing the material objects in court is not a ground to doubt the case of the prosecution. The sample was taken from the court and sent to chemical analyst. There was no evidence to show that material object was tampered with or the same was substituted. Mere delay in producing the material objects in court is not a ground to reject the report of the chemical analyst. 9. Learned counsel for the revision petitioner arguing the revision submitted that no opportunity was given to accused to cross examine PW1, the investigating officer which caused much prejudice Crl.R.P.No.362/02 Page numbers to the accused . There is no substance in the above contention. No steps were taken by the accused to recall PW1 for cross examination. Therefore, I am not inclined to accept the above contention of accused. For all these reasons, I am inclined to hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence adduced on the side of the prosecution and holding that the prosecution has succeeded in proving that accused was found in possession of 1 ½ litres of illicit arrack as alleged by the prosecution. Point No.2 10. The next question for consideration is whether the charge under Section 55(a) will lie against the accused. The accused was found to be in possession of 1 ½ litres of illicit arrack. A Single Bench of this court in Sachidanandan v. State of Kerala ( 2006 KHC 1932) has held that Section 55(a) of Abkari Act applies only when a person is in possession of illicit liquor while importing, exporting or transporting it. When there is mere possession of illicit liquor, Section 58 would be applicable. Therefore the conviction of the revision petitioner under Section 55(a) cannot be sustained and is hereby set Crl.R.P.No.362/02 Page numbers aside. Instead, he is convicted under Section 58 of Abkari Act. Point No.2 11. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for one year and to pay a fine of Rs. 25,000/-. I have set aside the conviction under Section 55(a) and convicted the accused under Section 58 of Abkari Act. The incident occurred on March 23, 1996. During that period, punishment prescribed under Section 58 of Abkari Act was fine which may extend to Rs. 15,000/- or imprisonment which may extend to two years. As the incident is of the year 1997 and the quantity of illicit arrack found in possession of the accused is only 1 ½ litres, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 55(a) of Abkari Act is set aside and he is convicted under Section 58 of Abkari Act. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default, to Crl.R.P.No.362/02 Page numbers undergo simple imprisonment for three months. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. Two month's time is granted for payment of fine. If any portion of the fine amount is deposited by the revision petitioner before the trial court, the same shall be adjusted towards the fine amount. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.362/02 Page numbers