IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 455 of 2001() ----------------------------- CRA.382/1999 of ADDL.SESSIONS COURT, KOZHIKODE SC.175/1998 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- ASOKAN, AGED 45, S/O.CHATHU, ALAPURAYIL HOUSE, PAIGOTTUPURAM DESOM KUNNAMANGALAM AMSOM. BY ADV. SRI.C.P.RAVIKUMAR SRI.P.V.LONACHAN RESPONDENT/COMPLAINANT --------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.455 of 2001 ---------------------------------------- Dated this the 16th day of March 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(a) of the Kerala Abkari Act. The crux of the allegations against the petitioner is that he was found to carry in his possession 1.5 litres of illicit arrack in a can MO1 at 7 a.m on 04/06/1997 at Kunnamangalam. He was allegedly intercepted by PWs 1 and 2 who had seized the contraband article in MO1 container under Ext.P1 seizure mahazer in the presence of PWs 3 and 4. The seized article along with the arrested accused were produced before PW5. He conducted investigation and on the basis of the final report submitted by him, cognizance was taken. 2. The accused denied the offence alleged against him and thereupon the prosecution examined PWs 1 to 5 and proved Exts.P1 to P5. 3. PW1 is the Preventive Officer who detected the offence and PW2 is the Excise Guard who accompanied PW1. Ext.P1 is the seizure mahazer prepared by PW1 to evidence the seizure. PWs 3 and 4 are witnesses examined by the prosecution Crl.R.P.No.455/01 2 to prove seizure. They turned hostile to the prosecution; but admitted their signatures in Ext.P1. PW5 conducted the investigation. He proved Ext.P2 occurrence report, Ext.P3 property list, Ext.P4 forwarding note and Ext.P5 report of the chemical examiner. 4. The accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the oral evidence of PWs 1 and 2 can be believed and when believed, it reveals the ingredients of the offence punishable under Section 55(a) of the Kerala Abkari Act. The accused was allegedly transporting the said illicit liquor. Accordingly, it was found that the offence under Section 55(a) of the Kerala Abkari Act has been established. The petitioner was consequently found guilty, convicted and sentenced. 5. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner submits that the courts below erred in placing reliance on the oral evidence of PWs 1 and 2. 6. The oral evidence of PWs 1 and 2 is eminently supported by the contents of the contemporaneous seizure mahazer Ext.P1, the signature in which is admitted by PWs 3 and 4. The mere fact that Crl.R.P.No.455/01 3 PWs 1 and 2 are officials of the excise department, it is insufficient, according to me, to discard their oral evidence. I note, particularly, that there is no motive even remotely suggested as to why PWs 1 and 2 should foist a false case against the petitioner herein. Thus the evidence of PWs 1 and 2 is found to be acceptable. The same is supported by the contents of the contemporaneous Ext.P1 seizure mahazer and Ext.P2 occurrence report. Their oral evidence is supported by the admission of PWs 3 and 4 who had signed on Ext.P1 seizure mahazer, the contents on which corroborated the version of PWs 1 and 2. I do not find, in these circumstances, any merit in the challenge against the oral evidence of PWs 1 and 2. The evidence of PWs 1 and 2, which is found to be acceptable, clearly establishes the ingredients of the offence punishable under Section 55(a) of the Kerala Abkari Act. 7. The learned counsel for the petitioner submits that the sentence imposed is at any rate excessive. 1.5 litres of arrack was being carried by the petitioner. The trauma of this prosecution has been hanging over for the past about 12 years. There is a mandatory sentence of fine to be imposed; but there is no mandatory minimum substantive sentence. The default sentence is also at the discretion of the court. The courts below have imposed R.I for a period of three years and fine of Rs.1,00,000/-. Crl.R.P.No.455/01 4 Default sentence of R.I for a further period of six months is also imposed. 8. I find merit in the contention that the revision petitioner is entitled to leniency. Considering the totality of circumstances, I am satisfied that the sentence imposed can be modified. 7. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 55(a) of the Kerala Abkari Act are upheld. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo R.I for a period of six months. The sentence of fine of Rs.1,00,000/- imposed by the court below is upheld. But the default sentence is modified and reduced to R.I for a period of three months. The petitioner shall have time till 16/04/2009 to appear before the learned Magistrate for execution of the modified sentence hereby imposed. 8. Communicate the order to the court below forthwith for execution of the modified sentence imposed hereby. (R.BASANT, JUDGE) jsr Crl.R.P.No.455/01 5 Crl.R.P.No.455/01 6 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008