IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 832 of 2003() ----------------------------- S.T.5446/98 OF Judicial First Class Magistrate, KODUNGALLUR CRL.A.157/2001 OF III ADDL.SESSIONS COURT (ADHOC) FAST TRACT-I, THRISSUR REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SUDHAKARAN, S/O.KUNJAPPAN, KOZHIPARAMBIL, KANNAMPULLYPURAM, EDATHIRUTHY, THRISSUR DISTRICT. BY ADV. SRI.K.R.SACHIDANANTHAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, MATHILAKAM BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3063/03 IN CRL.R.P.832/03 DISMISSED 19/5/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.832 OF 2003 --------------------------------------------- Dated 19th May, 2010 O R D E R Petitioner was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,000/- and in default rigorous imprisonment for one month by Judicial First Class Magistrate, Kodungallur in S.T.5446/1998. Petitioner challenged the conviction and sentence before Sessions court, Thrissur in Crl.A.157/2001. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Revision petitioner would contend that courts below did not properly CRRP.832/03 2 appreciate the evidence and when the five independent witnesses turned hostile, testimony of the three police witnesses should not have been accepted and petitioner should not have been convicted. It is also contended that investigation was conducted by PW6, the Sub Inspector who detected the crime and out of 27 packets of arrack only two packets were sent for chemical analysis and in the absence of evidence with regard to the ingredients of each packet, conviction is bad. 2. As the Learned counsel appearing for the petitioner was not present, learned Public Prosecutor was heard and records were perused. 3. Prosecution case is that on 9/6/1996 PW6 Sub Inspector of Mathilakam police station along with police party on getting information that petitioner is proceeding for sale of CRRP.832/03 3 arrack in a bicycle reached near Kannambullipuram Udhayabhanu road and found the petitioner riding a bicycle. When petitioner was apprehended, it was found that a plastic sack was kept on the carrier of the bicycle. In the presence of the witnesses plastic sack was opened and it was found that it contained 27 packets each containing 100 ml. Articles were seized and mahazar was prepared and produced before the court. Out of the packets, two packets were sent for chemical analysis. Ext.P4 report establishes that the sample contains 25.78% and 25.94% by volume of ethyl alcohol. Though Pws.2 and 3 independent witnesses and PW5 the younger brother of the petitioner also turned hostile, learned Magistrate accepted the evidence of PW6, Sub Inspector as well as the police constable that petitioner was riding the bicycle containing a CRRP.832/03 4 plastic sack which contains 27 packets of arrack on that day. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. I find no illegality or irregularity in the appreciation of evidence. From the evidence it is proved that petitioner was carrying 27 packets each containing 100 ml. of arrack in the bicycle on 9/6/1996. Fact that independent witnesses turned hostile is not a ground to disbelieve the evidence of PW6, corroborated by Ext.P1 mahazar which was prepared at the time of seizure. I find no illegality or irregularity in the finding that petitioner was found carrying 27 packets of 100 ml. of arrack in the bicycle as alleged by the prosecution. 4. But the question is whether an offence under Section 55(a) of Abkari Act is attracted. CRRP.832/03 5 5. Though courts below did not consider this question, to attract an offence under Section 55(a), prosecution must have a case that arrack seized from the petitioner was being possessed by him for the purpose of import or export. There is no such case. The question has been settled by the Division Bench of this court in Surendran v. Excise Inspector (2004 (1) KLT 404) and later re-iterated in Mohanan v. State of Kerala (2007 (1) KLT 845). The Division Bench held that as clause (a) of Section 55 deals with illegal imports and exports of liquor or intoxicating products or transports or possesses such liquor covered under import or export, if the possession or transit was not in the course of export or import, Section 55(a) is not attracted. In the light of the Division Bench decisions, conviction for the offence under Section 55(a) CRRP.832/03 6 will not stand. Petitioner could be convicted only for the offence under Section 58 of the Abkari Act. Revision is partly allowed. Conviction of the petitioner for the offence under Section 55(a) of Abkari Act is set aside. Petitioner is convicted for the offence under Section 58 of Abkari Act and sentenced to simple imprisonment for six months and a fine of Rs.4,000/- and in default simple imprisonment for one month. Judicial First Class Magistrate, Kodungallur is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.