IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2103 of 2007() ------------------------------ S.C.184/2006 OF ASST.SESSIONS COURT, PALAKKAD CRA NO.542/2006 OF SESSIONS COURT, PALAKKAD REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------- K.KRISHNAN, S/O KANNAN, CHEMMANAMPARAMBU VEEDU, CHITHALI, KUZHALMANNAM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, KUZHALMANNAM RANGE. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2103 OF 2007 =========================== Dated this the 18th day of December,2008 ORDER Revision petitioner was tried for the offence under section 55(a) and 8(1) and (2) of Abkari Act by Assistant Sessions Judge, Palakkad. Petitioner pleaded not guilty. As seen from the records, he was in custody from the date of his arrest on 15.7.2005 and was defended at the trial by a counsel appointed by the Court. Learned Assistant Sessions Judge convicted the revision petitioner for the offence under section 55(a) of Abkari Act and sentenced him to simple imprisonment for two years and a fine of Rs.1,00,000/- and in default simple imprisonment for one year for the offence under section 55(a) and also for the offence under section 8(1) and (2) of Abkari Act. From the jail petitioner challenged the conviction before Sessions Court, Palakkad in Crl.A.542/2006. Learned Sessions Judge on reappreciation of CRRP 2103/2007 2 evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel pointed out that substantive sentence awarded by the Assistant Sessions Judge was simple imprisonment for two years and in default sentence of fine was one year and set off was allowed under section 428 of Code of Criminal Procedure and revision petitioner had been in remand or was undergoing sentence from 15.7.2005 and the three year period expired on 14.7.2008 and even if the revision petitioner is not entitled to get any remission the period is over. Therefore the revision now is for only academic purpose. 4. The conviction of the petitioner for the offence under section 55(a) of Abkari Act cannot be sustained, in view of the Division Bench decision CRRP 2103/2007 3 of this court in Surendran v. Excise Inspector (2004(1) KLT 404)and Mohanan v. State of Kerala (2007(1) KLT 845). Prosecution has no case that revision petitioner was illegally importing, exporting or transporting five litres of illicit arrack seized from him. Therefore petitioner could have been convicted only for the offence under section 8(2) of Abkari Act. Though the judgment of the learned Sessions Judge shows that the conviction was only for the offence under section 55(a) of Abkari Act, the charge framed by the learned Sessions Judge for the offence under section 55(a) and Section 8(2) of the Abkari Act. When the Sessions Judge was found that revision petitioner was in possession of five litres of arrack at the time when he was arrested by the Preventive Officer of Excise Range, conviction of the revision petitioner though not specifically shown as under section 8(2) of the Abkari Act, it could only be under section 8(2) of the Act as the CRRP 2103/2007 4 Sessions Judge has awarded the sentence for the said offence. Therefore I find no reason to interfere with the conviction. But making it clear that the conviction is only for the offence under section 8(2) of the Abkari Act. As the period of sentence, even without any remission is over by this time, there is no necessity to interfere with the sentence also. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006