IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 386 of 2002() ---------------------------------------- CRA.137/1999 of II ADDL.SESSIONS COURT, KOLLAM ST.1164/1996 of MUNSIFF MAGISTRATE COURT, PARAVUR. .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- AZHAKESAN, S/O.NARAYANAN, ULIYANADU CHERRY CHIRAKKARA VILLAGE, KOLLAM DISTRICT BY ADV. MR.SHABU SREEDHARAN MR.BOBBY K.PAUL RESPONDENT/RESPONDENT/COMPLAINANT ---------------------------------------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.Rev.Pet.No. 386 of 2002 ORDER ON CRL.MP. NO.2688/2002 IN CRRP NO.386/2002 DISMISSED 27/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 386 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2009 ORDER The revision petitioner is the accused in ST.No.1164/1996 of Munsiff Magistrate Court, Paravur and appellant in Crl.Appeal No.137/99 of Second Additional Sessions Court, Kollam. He was convicted under Section 58 of Abkari Act and sentenced to undergo rigorous imprisonment for six months which is 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 is that revision petitioner was found in possession of 1 litre of illicit arrack in a can on September 10, 1996 at 8.45 A.M. on the southen side of Thembra bridge of Uliyanadu cherry and that thereby committed the offence punishable under Section 58 of the Abkari Act. 4. The accused on appearance before the trial court pleaded not guilty to a charge under Section 58 of Abkari Act. PWs 1 to 5 were Crl.R.P.No.386/2002 Page numbers examined and Exts.P1 to P3 were marked and Mos 1 and 2 were produced on the side of the prosecution before the trial court. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. On the side of the accused, DW1 was examined. 5. On an appreciation of evidence, the trial court found the accused guilty of the offence punishable under Section 58 of Abkari Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging in conviction and sentence. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 58 of Abkari Act rendered by trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PWs 1 to 5 were examined and Exts.P1 to P3 were marked Crl.R.P.No.386/2002 Page numbers on the side of the prosecution to prove the guilt of the accused. PW1 is the then Excise Inspector of Chathannoor Excise Range. PW 4 is the then Preventive Officer of the same range. They testified that while they were on petrol duty they found the accused with MO1 can and MO2 glass and on inspection MO1 can found to contain 1 litre of illicit Arrack. I have gone through the evidence of PWs 1 and 4. Nothing was brought out during their cross examination to discredit their evidence. They have absolutely no enmity towards the accused to foist a false case against him. Therefore, in my view the trial court as well as the lower appellate court is justified in believing their evidence. PWs 2 and 3 who are attestors to Ext.P1 mahazer did not support the prosecution case. PW5 is the Excise Inspector who laid the charge before the trial court. Ext.P3 is the chemical analysis report which shows that the liquid seized from the accused was illicit arrack. 8. An attempt was made on the side of the accused by examining DW1 to show at the time when the accused was arrested, MO1 can or MO2 glass were not seized. The trial court for convincing and cogent reasons disbelieved his evidence . On going through his Crl.R.P.No.386/2002 Page numbers evidence, it is seen that he was very eager to help the accused. Therefore, the trial court as well as the lower appellate court is perfectly justified in rejecting his evidence. For all these reasons, accepting the evidence on the side of the prosecution, I am inclined to uphold the finding of the trial court which is confirmed in appeal that the accused was found in possession of 1 litre of illicit Arrack as alleged by the prosecution. 9. The next question is whether charge under Section 58 will lie against the accused. The accused was found in possession of 1 litre of illicit arrack. The incident occurred on 10-04-1996. During that period arrack was not banned . The permissible quantity that a person can carry at that time was 750 ML of Arrack as seen from the notification SRO 89/1969 dated 09-02-1969. That being so, the accused can be found guilty of only violation of Sections 10 and 13 of the Act for having been in possession of illicit arrack in excess of the permissible quantity which is punishable under Section 63 of the Abkari Act. This position has been highlighted by a Single Bench of this court in Sabu v. State of Kerala ( 2004 (7) KLT 169). Therefore, Crl.R.P.No.386/2002 Page numbers I hold that the conviction of the accused under Section 58 is not legally sustainable and the same is hereby set aside and he is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. Point No.2 10. As regards the sentence, prior to amendment punishment prescribed under Section 63 of Abkari Act is a fine of Rs. 2,000/- only. Therefore, he is sentenced to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for three months. In the result, the criminal revision petition is allowed in part. The conviction of the revision petitioner under Section 58 is set aside and he is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. He is sentenced to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for three months. His bail bonds are cancelled. One month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.386/2002 Page numbers