IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 703 OF 2007() ----------------------------- CRA.101/2005 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGOD SC.52/2002 of ASSISTANT SESSIONS COURT, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.M.RAGHAVAN, AGED 41 YEARS, S/O.MARTHADI, RESIDING AT MAYIPPADI, PATLA VILLAGE, KASARGOD TALUK AND DISTRICT, KASARGOD. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S):/RESPONDENT/ COMPLAINANT -------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 703 OF 2007 ------------------------------------------ Dated this the 9th day of December, 2008 O R D E R Revision petitioner was convicted and sentenced for the offence under section 55(a) of Abkari Act by Assistant Sessions Court, Kasaragod in S.C.52 of 2002. It was confirmed by Additional Sessions Judge in Crl. Appeal 101 of 2005. The conviction and sentence is challenged in this revision. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. The charge against the revision petitioner was that on 17.10.2000 at about 2.45 p.m. he was found in possession of 10 bottles of Karnataka State made foreign liquor by name Highway Fine Whisky enclosed in MO2 plastic bag, in front of the bus waiting shed in Mayipadi-Kasaragod road in contravention of the provisions of Kerala Abkari Act and thereby committed offence under section 55(a) of Abkari Act. Petitioner was found by PW1, the Excise Range Inspector, who was on patrol duty along with PW2, the Preventive Officer. Finding suspicious, they examined the contents of MO2 plastic bag and found that it contained CRRP 703/2007 2 750 ml each of 10 bottles of Highway Fine Whisky with the label to be sold only in Karnataka State. After preparing Ext.P2 mahazar the bottles and MO2 plastic bag were seized. After preparing Ext.P1 arrest memo, revision petitioner was arrested. PW1 opened one of the 10 bottles and prepared sample in a 370 ml bottle and sealed it. The remaining bottles were enclosed in MO2 bag and it was also sealed. Along with revision petitioner and seized articles, PW1 reached the Excise Range Office and prepared Ext.P3 occurrence report, Ext.P4 property list and Ext.P5 forwarding note to forward the sample to chemical laboratory. Ext.P4 property list shows that material objects were produced before Magistrate on the same day. Ext.P5 shows that on the forwarding note, learned Magistrate directed the sample to be forwarded and it was despatched on 30.10.2000. Ext.P6 report shows that the sealed sample was received at the laboratory on 31.10.2000 and on analysis it is found to contain 41.38% by volume of Ethyl Alcohol. After completing the investigation, charge was laid. Petitioner pleaded not guilty. Prosecution examined PWs 1 to 4, marked Exts.P1 to P6 and identified MOs 1 and 2. After questioning the revision petitioner under section 313 of Code of Criminal CRRP 703/2007 3 Procedure and hearing the prosecution and defence, he was called upon to adduce evidence. But no defence evidence was adduced. It is thereafter learned Additional Sessions Judge on hearing the prosecution and defence found the petitioner guilty and convicted and sentenced him. Learned Sessions Judge on reappreciation of evidence confirmed the same. It is challenged in the revision. 4. Learned counsel argued that Courts below did not properly appreciate the evidence and should not have relied on the evidence of PWs 1 and 2, which are inconsistent and contradictory. It was argued that sample was taken only from one bottle and on that basis Courts below should not have found that the remaining bottles also contained Ethyl Alcohol and therefore the conviction is not sustainable. Reliance was placed on the decision of a learned Single Judge of this Court in Krishnankutty Vs. State of Kerala (2005 (3) KLT 568). The learned counsel also argued that failure to produce the sample seal before the Court is fatal and this aspect was not taken into consideration by the Courts below. Finally it was contended that in any case in the absence of a case that revision petitioner was in the process of import, conviction for the offence under section CRRP 703/2007 4 55(a) is not sustainable. 5. Evidence of PW1 is fully corroborated by the evidence of PW2. Their version is further corroborated by Ext.P2 seizure mahazar, a contemporaneous record, prepared at the time of seizure. Though learned counsel argued that there is inconsistency in the evidence of PWs 1 and 2 and the contradictory evidence should not have been accepted, the alleged contradiction or inconsistency as pointed out, is the difference in the direction where petitioner was found at the time of seizure namely on the east or west of the waiting shed. On going through the evidence, I do not find any material contradiction so as to disbelieve the evidence of PWs 1 and 2. The evidence of PWs 1 and 2 is that revision petitioner was standing in front of the waiting shed on the side of the National Highway holding MO2 plastic bag. There is no inconsistency or contradiction on that version. Both the trial Court and Appellate Court accepted their evidence. I find no reason to differ. 6. The evidence of PWs 1 and 2 with Ext.P2 establish that when MO2 bag was examined, it contained 10 bottles of Karnataka made Indian made foreign liquor and one of the bottles was opened and a sample was prepared and sealed. CRRP 703/2007 5 Though it was argued that as the sample seal was not produced, the authenticity of the seized articles is not established, I find that regarding the mode of sampling neither PW1 nor PW2 was cross-examined. Evidently there was no dispute with regard to taking sample or sealing at the time of evidence. Therefore non production of the sample seal is not fatal. Ext.P4 property list shows that learned Magistrate had received the sample along with MO1 bottles contained in MO2 plastic bag on 17.10.2000 itself. Ext.P5 forwarding note establish that even the forwarding note was prepared on the same date and learned Magistrate directed to forward the sample on 30.10.2000. Ext.P6 report establish that the sample was received at the laboratory on 31.10.2000 and the seal was intact. Ext.P6 establish that sample on examination contained 41.38% by volume of Ethyl Alcohol. Though reliance was placed on the decision of the learned Single Judge in Krishnankutty's case (supra), Division Bench of this Court in Chandran Vs. State of Kerala (2008(2) KLT 513) considering the said decision in the light of the decision of the Apex Court in Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay (AIR 1953 SC 247) held that it is not necessary to forward each bottle for chemical examination and sending one CRRP 703/2007 6 bottle is sufficient. That exactly is the case herein. The revision petitioner was found possessing 10 smaller bottles of Karnataka made Indian made foreign liquor, Highway Fine Whisky and sample was prepared from one such bottle. Therefore there is no necessity to take sample from the remaining ten bottles or to forward the remaining ten bottles also to the laboratory. Though learned counsel argued that as PW3, an independent eyewitness examined had turned hostile, and therefore the evidence of PWs 1 and 2 should not have been believed, I cannot agree with the submission that when the independent witness turned hostile to the prosecution, official witnesses are either to be disbelieved or their evidence is to be viewed with suspicion. There is no such rule or law to disbelieve the evidence of PWs 1 and 2. Evidence establish that revision petitioner was possessing ten sample bottles of Karnataka made foreign liquor by name No.1 Highway Fine Whisky containing 750ml each and as is clear from Ext.P2 mahazar the label affixed on each bottle shows that the Whisky is to be sold only within Karnataka State and not Kerala. 7. The question then is what is the offence proved. Learned Assistant Sessions Judge and learned Sessions Judge CRRP 703/2007 7 convicted the petitioner for the offence under section 55(a) of Abkari Act. Relying on the decision of the Division Bench of this Court in Surendran Vs. Excise Inspector (2004 (1)KLT 404) it was argued by the learned counsel that conviction for the offence under section 55 (a) of Abkari Act is not sustainable. 8. The Division Bench considering section 55(a) of Abkari Act held that the case shall fall within the ambit of section 55(a) only when a person is found to be in possession of liquor in the process of import, export, transport or transit of the goods and in case possession is merely with the knowledge of the goods having been illegally imported or manufactured, the offence would fall within the mischief of section 58. Therefore when prosecution has no case that revision petitioner was in the process of importing the Karnataka made Whisky to Kasaragod, he cannot be convicted for the offence under section 55(a) as has been done by the Courts below. As declared by the Division Bench in Surendran's case (supra) it can only be taken that revision petitioner was in possession of 10 bottles of Karnataka made Whisky with the knowledge that they were illegally imported to Kerala. Therefore he could be convicted only for the offence under section 58 of Abkari Act. CRRP 703/2007 8 9. Then the question is regarding the sentence. The sentence for the offence under section 58 of Abkari Act is imprisonment for a term which may extend to ten years and fine which should not be less than Rs.1,00,000/-. Learned Assistant Sessions Judge awarded a simple imprisonment of three months in addition to the minimum fine of Rs.1,00,000/-. Considering the fact that incident was in 2000 and revision petitioner was not involved in any other case, interest of justice will be met if the substantive sentence is reduced to simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under section 55(a) of Abkari Act is set aside. Revision petitioner is convicted for the offence under section 58 of Abkari Act and sentenced to simple imprisonment for one month and fine of Rs.1,00,000/- and in default simple imprisonment for one month. Revision petitioner is entitled to set off the period he had been in custody during investigation or trial. M. SASIDHARAN NAMBIAR, JUDGE Okb/-