IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 1923 of 2009() ------------------------------ CRA.172/2007 of ADDITIONAL SESSIONS JUDGE, KASARAGOD AGAINST THE JUDGMENT OF ASSISTANT SESSIONS JUDGE, HOSDURG .................... REVN. PETITIONER/ APPELLANT/ACCUSED: ------------------------------ MANOHARAN, S/O. KOTTAN RESIDING AT BANAM, PARAPPA VILLAGE, HOSDURG TALUK. BY ADV. SMT.T.SUDHAMANI RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1923 of 2009 --------------------------------------- Dated this 12th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Adhoc-III, Kasaragod in Criminal Appeal No.172 of 2007 confirming conviction and sentence of petitioner for offence punishable under section 55(a) of the Abkari Act. Case is that on 26- 12-2003, petitioner was found in possession of three litres of illicit arrack in a plastic Can. PW3, Sub Inspector who is said to have dictated the offence gave evidence that while on patrol duty that day he got information about petitioner engaged in distilling and selling illicit arrack in a shed and along with a party reached the said place at about 6 p.m. On nearing the shed petitioner who was carrying a plastic Can ran away from shed leaving the plastic Can at the spot. That plastic Can was found to contain about three litres of illicit arrack. PW3 drew sample from the same and the same as well as the rest were properly sealed, packed, labelled and taken to custody. PW3 identified MO1 as the Can and MO2 as the rest of the contraband. Ext.P1 is the mahazar for seizure. Ext.P2 is the crime and occurrence report. PW3 who claimed to have accompanied PW1 has given similar evidence. He also identified petitioner as the person who was found possessing the contraband and running away from the scene. PW2 is an independent witness and according to the prosecution, an attestor Crl.R.P.No.1923 of 2009 2 in Ext.P1. He denied witnessing the incident and signing Ext.P1. He claimed that he had signed a blank paper as requested by the police. PW4, Sub Inspector investigated the case. Ext.P4 is the mahazar for scene of occurrence. Ext.P7 is the report of chemical examination which stated that the sample contained Ethyl Alcohol. Courts below accepted the above evidence and found petitioner guilty. Conviction and sentence are challenged in this revision. Learned counsel contended that the alleged incident is not proved beyond reasonable doubt. 2. It is true that PW2, a witness to the incident denied witnessing the incident and signing Ext.P1. But, PW2 came from the locality where the alleged incident occurred. Moreover he admitted that he had given his signature in signed blank paper. It is true that the signature purporting to be of PW2 in Ext.P1 slightly differs from his signature in his deposition. But post litum signature cannot safely be used for comparison. PW3 has stated that PW2 signed the mahazar at the spot. There is no reason why I should disbelieve PW3. 3. So far as identification is concerned PW1 claimed that petitioner was known to him even prior to the incident. In Ext.P1 it is stated that even at the time of incident PW1 had told PW3 the name of the person who had ran away from the scene of occurrence. PWs.1 and 3 have identified the petitioner as the offender. It is not shown Crl.R.P.No.1923 of 2009 3 that PWs.1 and 3 had any axe to grind against petitioner. It is seen that relevant records and material objects reached the trial court on 27-12-2002 itself. Though PWs.1 and 3 claimed that labels were affixed on material objects it came out that there was no label on MO1 at the time of trial but it is seen from Ext.P3, property list that material objects were produced in court with proper labels. Identity of the material objects is not successfully challenged. On going through the evidence I find no reason to interfere with conviction of petitioner. 4. Learned Assistant Sessions Judge sentenced petitioner to undergo simple imprisonment for three months and payment of fine of Rs.one lakh. Default sentence of imprisonment for three months was also provided. Appellate court did not interfere with the sentence. It is contended that sentence awarded is excessive. It is not shown that petitioner is involved in any other case. Considering that and the age of petitioner, period of detention already undergone by petitioner is sufficient so far as substantive sentence is concerned. Default sentence for non payment of fine is modified as simple imprisonment for one month. Sentence of fine does not call for interference. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified and confined to the period of detention already undergone by him. Crl.R.P.No.1923 of 2009 4 2. Default sentence for non payment of fine is modified as simple imprisonment for one month. 3. Petitioner is granted two months' time from today to deposit fine in the trial court. In case of non payment of fine petitioner shall appear in the trial court on 13-10-2009 to suffer the default sentence. Execution of warrant if any against petitioner will stand in abeyance till 13-10-2009. THOMAS P JOSEPH, JUDGE Sbna/