IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 Crl.Rev.Pet.No. 173 of 2002(C) ------------------------------ CRA.303/1998 of SESSIONS COURT, KOZHIKODE CC.52/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER/APPELLANT: ------------------------------ THANKACHAN @ MATHEW, S/O.MADAKKAL MATHAI, KODENCHERY AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON 07/04/09 PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1021/02 IN CRL.R.P.NO.173/02 DISMISSED. 7.4.2009 SD/- SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.173 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th April, 2009 ORDER The challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence under Section 58 of the Kerala Abkari Act (for short 'the Act'). The learned Magistrate, after trial, negativing his plea of not guilty, found him guilty and convicted him of the offence sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.15,000/- with default term of simple imprisonment for two months. In appeal, the learned Sessions Judge confirmed the conviction and upheld the sentence without any modification. Aggrieved, the accused has preferred this revision questioning the legality, propriety and correctness of the conviction and sentence passed against him. 2. The gist of the prosecution case is that an excise party headed by P.W.1, the Preventive Officer, while conducting petrol duty within his jurisdiction, found the accused beside a public pathway carrying a plastic can, at about 12.30 P.M. on 7.11.1996. Seeing the excise party, the accused got perplexed and attempted to run away from the scene. He was intercepted and the plastic can carried by Crl.R.P.No.173/02 - 2 - him was examined, which contained 10 litres of arrack. Sample was collected and sealed at the spot. Sample and residue were seized into custody, preparing Ext.P1 mahazar. The accused arrested was later enlarged on bail. P.W.4, the Excise Inspector, after completing investigation, filed a report before the court indicting the accused under Section 58 of the Act. 2. The accused, on appearance, pleaded not guilty to the charges. The prosecution examined P.Ws.1 to 4, got marked Exts.P1 to P4 and identified M.O.1 to bring home the guilt of the accused. The accused maintained his innocence when he was questioned under Section 313 Cr.P.C. He then submitted that he was employed as a storekeeper in an arrack godown previously, and P.W.1, after collecting arrack from the store, had foisted a false case against him alleging that he had engaged in the sale of arrack. He also got examined one witness as D.W.1, the owner of the building which was previously used an arrack godown. That witness gave evidence that the excise party had taken some materials from the godown after the prohibition of arrack came into force. The learned Magistrate, after appreciating the materials, found the culpability of the accused for the offence indicted established by the prosecution, and the defence Crl.R.P.No.173/02 - 3 - case canvassed was unworthy of any credence. The accused thereupon was found guilty, convicted for the offence and sentenced as indicated earlier. Conviction and sentence was confirmed by the learned Sessions Judge in appeal. 3. I heard the learned counsel for the accused and also the learned Public Prosecutor. 4. Conviction of the accused is assailed by the learned counsel contending that other than the uncorroborated evidence of the excise officials, P.Ws.1 and 2, the prosecution has not let in any independent evidence to prove the seizure of the contraband from his possession as alleged. P.W.3, an attestor to the mahazor, the only independent witness examined in the case, it is submitted, disowned witnessing of the seizure. Conviction solely based on the evidence of the excise officials, in the given facts, is not sustainable, and the defence canvassed by the accused, as supported by the evidence of D.W.1, should have been accepted as probable, submits the counsel. Conviction of the accused is also assailed on a legal ground that the prosecution has not shown that the possession of liquor by the accused was with the knowledge that such liquor had been illegally imported or manufactured, to constitute an offence under Section 58 Crl.R.P.No.173/02 - 4 - of the Act. Reliance is placed on Surendran v. Excise Inspector (2004(1) KLT 404) to contend that Section 58 of the Act would apply only in case where possession is with the knowledge that the liquor seized had been illegally imported or manufactured, and in the present case, there was nothing to show that the accused had possessed illicit liquor with knowledge that it had been imported or manufactured. So much so, it is the submission of the learned counsel that the conviction founded against the accused for the offence under Section 58 of the Act is unsustainable. 5. I am not persuaded by the submissions made by the learned counsel that the conviction of the accused suffers from any infirmity for the reason that the evidence of the excise officials has not been corroborated by any independent source and also on the ground that necessary ingredients to constitute an offence under Section 58 of the Act had not been established by the prosecution in the present case. So far as the evidence of P.Ws.1 and 2, the excise officials, who were involved in detection and seizure of the arrack from the accused, it has to be stated that both the courts below have found their evidence reliable, trustworthy and credible. There is no rule of law that the evidence of an excise of police official can be accepted Crl.R.P.No.173/02 - 5 - only if it is corroborated from independent source. The evidence of the police or the excise officials should also receive due merit and consideration as in the case of any other witness. Even the accused has no case that P.Ws.1 and 2 have any axe to grind against him to implicate him in a false case involving abkari offence and, further, to perjure against him before a court of law. Their evidence, it is seen, is corroborated by Ext.P1 mahazar prepared over the seizure of the contraband. P.W.3, attestor to Ext.P1 mahazar admitted of subscribing his signature at the spot but denied witnessing of the seizure of contraband from the accused. His denial as above in no way enures to the benefit of the accused where the evidence of P.Ws. 1 and 2 convincingly establish the seizure of the contraband from his possession. Then as regards the challenge raised that prosecution had not established the essential ingredients to sustain the offence under Section 58 of the Act, relying on the decision in Surendran v. Excise Inspector (2004(1) KLT 404), it need be pointed out that the seizure of the contraband arrack from the accused was after the promulgation of Act 10 of 1996 incorporating Section 8 in the Act, whereby absolute prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc. of Crl.R.P.No.173/02 - 6 - arrack was brought into force. Such prohibition came into force with effect from 1.4.1996, but a separate penal provision as sub-section (2) of Section 8 was brought into the Act only by Act 16 of 1997 with effect from 3.6.1997. Separate penal provision had been brought only later and it was not there when the occurrence of the case took place, the seizure of the arrack from the possession of the accused, is of no avail to him since the other penal provisions under the Act applicable for possessing the prohibited contraband would be applicable where there is total prohibition for possessing or manufacturing arrack. The question whether the accused had such possession with knowledge, that the contraband had been unlawfully imported, transported or manufactured, which is a conscious state of mind, has no significance, after the coming into force of Act 10 of 1996, and the decision relied by the learned counsel rendered at a time when there was no prohibition in respect of arrack, has no application at all. So much so, the conviction of the accused for the offence under Section 58 of the Act for having found in possession of arrack, the possession of which is prohibited by the Act, which has been convincingly brought home by the materials produced, deserve only to be upheld, and I do so. Crl.R.P.No.173/02 - 7 - 6. Sentence imposed against the accused for the offence with which he was found guilty and convicted cannot be considered excessive or unreasonable. Sentence does not require any interference. The revision is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE