IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.Rev.Pet.No. 657 of 2002(C) ------------------------------------------ CRL.A.NO.38/2000 OF ADDL.SESSIONS COURT, NORT PARAVUR, CC.NO.1023/1996 OF JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SANTHOSH, S/O.KUTTAPPAN, KOTTAMOLAM HOUSE, MUDAKUZHA DESOM,VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. BY ADV. MR.WILSON URMESE. RESPONDENT/RESPONDENT/COMPLAINANT AND STATE: ----------------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, PERUMBAVOOR. BY PUBLIC PROSECUTOR SMT. REKHA. C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 657 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 22nd day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.1023 of 1996 of Judicial Magistrate of the First Class, Perumbavoor and the appellant in Crl.A. No. 38 of 2000 of the Addl. Sessions Court, North Paravur. He was convicted under section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year by the trial court, which was confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on December 11, 1995 at about 7.30 P.M. the accused was found carrying five litres of brandy in 5 bottles without having any valid permit along the road lying in front of the tea shop of one Kuttappan at Mudakkuzha desom and that thereby committed the offence punishable under section 55(a) of the Abkari Act. 3. The accused on appearance before the trial court, pleaded not guilty to charge under section 55(a) of the Abkari Act. PWs.1 to 3 were CRRP 657/02 2 examined and Exts.P1 to P3 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused denied having been in possession of the liquor. DW1 was examined on his side. 4. The trial court on an appreciation of the evidence, found the revision petitioner guilty of the offence punishable under section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction and sentence. Now the accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration:- 1) Whether the conviction of the revision petitioner under section 55(a) of the Abkari Act rendered by the trial court, which was confirmed by the lower appellate court, can be sustained. 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? 6. PWs.1 to 3 were examined and Exts.P1 to P3 were marked on the side of the prosecution before the trial court. PW1 is the then Excise Inspector of Perumbavoor Excise Range. PW3 is the Preventive Officer who detected the offence. PWs.1 and 3 testified before the trial court that on December 11, 1995 at about 7.30 P.M. while they were on patrol duty, they CRRP 657/02 3 saw the accused having five bottles of brandy. They arrested the accused form the spot. I have gone through the evidence of PWs.1 and 3. Nothing was brought out in cross-examination to discredit their evidence. No serious discrepancies were also brought out. In cross-examination it was not even suggested to them they have any previous enmity with the accused. Therefore, in my view the trial court as well as the lower appellate court is justified in believing their evidence. PW2 is an independent witness to the arrest and seizure. He turned hostile and did not support the prosecution. Therefore, evidence of PWs.1 and 3 proves beyond doubt the case of the prosecution. An attempt was made on the side of the accused by examining DW1 to show that the revision petitioner/accused was arrested from his house and that liquor bottle was seized from the plantation which was owned by one Anandan. Except the version of DW1, there is no evidence to prove the case of the accused. Therefore, the trial court is perfectly justified in rejecting the evidence of DW1. For all these reasons accepting the evidence of PWs.1 and 3 I hold that the prosecution has succeeded in proving that the accused was found in possession five litres of Indian Made Foreign Liquor on December 11, 1995 at 7.30 P.M. 7. The next question for consideration is whether the charge under section 55(a) is sustainable. The incident occurred on December 11, 1995. CRRP 657/02 4 The revision petitioner was found in possession of five litres of Indian Made Foreign Liquor. The permissible quantity of liquor that can be carried by a person during that period was 1 ½ litres, as seen from Government Notification No.89/69. That being so, the revision petitioner/accused can be found guilty of only violation of rules 9 and 11 of the Foreign Liquor Rules and sections 10 and 13 of the Abkari Act for having been in possession of Indian Made Foreign Liquor in excess of the permissible quantity prescribed under Government Notification S.R.O. 89/69, which is punishable under section 63 of the Abkari Act. That being so, the accused can only be found guilty of violation of sections 10 and 13 of the Abkari Act. Therefore, the conviction of the revision petitioner under section 55(a) of the Abkari Act by the trial court which is confirmed in appeal is set aside and he is convicted under section 63 of the Abkari Act. 8. As regards the sentence, the maximum sentence that can be imposed under section 63 of the Abkari Act at that time was a fine of Rs.2,000/-. Therefore I feel that a sentence of fine of Rs.2,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 9. In the result, the conviction of the revision petitioner under section 55(a) is set aside, he is convicted under sections 10 and 13 read CRRP 657/02 5 with section 63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- , in default to undergo simple imprisonment for three months. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn CRRP 657/02 6 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 657 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 22nd day of October, 2009