IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 Crl.Rev.Pet.No. 1148 of 2002() ------------------------------------ CRA.232/1997 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.4603/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... APPELLANT (ACCUSED IN S.T. 4603/95): -------------------------------------------------------- AMMU, DAUGHTER OF LEKSHMI, NEERAZHI, MOOTHANVILA VEEDU, PEDIKKATTU MURI, CHERUVIKKAL VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SMT.NITHYA. K RESPONDENT(S): COMPLAINANT -------------------------------------- STATE, REPRESENTED BY THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM (CRIME NO.462/95), REPRESENTED BY THE PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs P.S. GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.1148 of 2002 --------------------------------------- Dated this 17th day of January, 2011 ORDER Revision petitioner is the accused in S.T.No.4603 of 1995 on the file of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. She was prosecuted by PW4, the Excise Circle Inspector attached to the Excise Range Office, Thiruvananthapuram with an allegation that on 23.11.1995, at 12.30 p.m, the revision petitioner was found carrying four litres of illicit arrack in a Can with a capacity of five litres. PW1, the Excise Inspector while moving on patrol duty along with PW2, the Preventive OFficer detected the offence. Revision petitioner was apprehended and the contraband was seized after preparing Ext.P1 mahazar. Ext.P2 is the occurrence report. PW3 is an attestor to Ext.P1. MO1 is the Can in which the revision petitioner was carrying the contraband liquid. Revision petitioner was released on bail after executing Ext.P3, Kaichit. The sample taken from the contraband seized from the revision petitioner was forwarded to the chemical examiner, who by Ext.P4, certificate certified that the sample contained 21.13% by volume of Ethyl Alcohol. Consequently PW4 launched the Crl.R.P.No.1148 of 2002 -: 2 :- prosecution. 2. The revision petitioner, in response to the process issued, entered appearance and denied the charge when the particulars were read over and explained. Therefore she was sent for trial. On the side of the prosecution, PWs.1 to 4 were examined. Exts.P1 to P4 and MO1 were marked. When questioned under Sec.313 of the code of Criminal Procedure she denied the incriminating evidence. However, no defence evidence was let in. Learned Magistrate on appraisal of the evidence arrived at a conclusion of guilt. Consequently she was convicted and sentenced to imprisonment till the rising of the court and a fine of `.15,000/- with a default sentence of simple imprisonment for two months under Sec.58 of the Abkari Act. Though she preferred criminal appeal she was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred. 3. I heard Adv.Smt.K.N.Rajani, the learned counsel appearing for the revision petitioner and the learned Public Prosecutor. Judgments of the courts below were also perused. Having heard either side and perusing the judgments of the Crl.R.P.No.1148 of 2002 -: 3 :- courts below I find that the courts below had correctly given reliance to the testimony of PWs.1 and 2 supported by Ext.P1. PW3 turned hostile to the prosecution. There is no good reason to disbelieve PWs.1 and 2 who had given evidence in support of the prosecution case. There is little material to come to a conclusion that PWs.1 and 2 were in any way ill motivated to fabricate the prosecution. Revision petitioner is now aged 76 years and then aged 60 years. She had not made any good suggestion to disbelieve PWs.1 and 2. I find that the courts below had correctly appraised the evidence on record and come to the conclusion of guilt. No good reason to interfere with the conviction entered by the courts below. 4. As regards the sentence, learned counsel for the revision petitioner would submit that the revision petitioner was a coolie and that now she is aged and ailing and that in the above circumstances the fine imposed is very exorbitant and that since she has no source of income she has no other go but to undergo default sentence, though the trial court has given a lenient sentence by confining the substantive sentence to imprisonment till the rising of the court. I find merit in the submission made by the learned counsel for petitioner. It is also submitted by the Crl.R.P.No.1148 of 2002 -: 4 :- learned counsel for the revision petitioner that a sum of `.7500/- had already been deposited before the trial court. In the above circumstance, I find that it would be just and proper to reduce the fine to a sum of `.7500/-. In the result, this revision petition is allowed in part. While confirming the conviction and the substantive sentence, the fine is reduced to `.7500/- (Rupees Seven Thousand and Five Hundred Only). (P.S. GOPINATHAN, JUDGE) Sbna/-