IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.Rev.Pet.No. 1071 of 2002(C) -------------------------------------------- CRL.A.NO.234/1997 OF SESSIONS COURT, KASARAGOD, STC.NO.3458/1995 OF JUDL.MAGISTRATE OF FIRST CLASS, KASARAGOD. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- P.C.KARUNAKARAN, S/O.POKKAN, CHANDANAKKAD HOUSE, ADOOR, KASARAGOD THALUK. BY ADVS. MR.I.V.PRAMOD, MR.SOJAN MICHEAL. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA(CRIME NO.72/95 OF BADIYADKA EXCISE RANGE), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1071/2002-C: ORDER ON CRL.M.P. NO. 5727/2002 IN CRL.R.P. NO. 1071/2002 DISMISSED 17/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1071 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of November, 2009. O R D E R Revision petitioner is the accused in S.T.No.3458 of 1995 of the Judicial Magistraet of the Frist Class, Kasaragod and the appellant in Crl.A. No. 234 of 1997 of the Sessions Court, Kasaragod. He was convicted under section 58 of the Abkari Act and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.15,000/-, in default to undergo simple imprisonment for three months. On appeal, the lower appellate court confirmed his conviction and sentence. 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 October 10, 1995 at 12 P.M. the accused was found in possession of three litres of illicit arrack in a can on the Adoor -Vellakanam road in Adoor and that thereby committed the offence punishable under section 58 of the Abkari ACt. 3. The accused, on appearance before the trial court, pleaded not guilty to charge under section 58 of the Abkari Act. PWs.1 to 5 were examined and Exts.P1 to P3 and MO1 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused denied the accusation. No defence evidence was adduced. Crl.R.P.1071/02 2 4. The trial court on an appreciation of the evidence found the accused 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. Heard the counsel for revision petitioner and the learned Public Prosecutor. 6. 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? 7. PWs.1 to 5 were examined and Exts.P1 to P3 and MO1 were marked on the side of the prosecution before the trial court. PW1 is the Preventive Officer who detected the offence. PW2 is the Excise Guard who was also allegedly present at the time of the seizure. PWs.1 and 2 testified in terms of the prosecution case. No serious discrepensies were pointed out to suspect their credibility. PWs.3 and 4 independent eye witnesses turned hostile to the prosecution. PW5 is the then Excise Inspctor of Badiadka Excise Range who registered the case. I have gone through the evidence of PWs.1 and 2. Nothing was brought out to Crl.R.P.1071/02 3 discredit their evidence. The counsel for revision petitioner argued that the evidence of official witnesses without any corroboration could not be accepted. It is settled law that the evidence of official witnesses, if otherwise found reliable, can be accepted even without any corroboration from independent witnesses. The trial court as well as the lower appellate court discussed their evidnce in deail and found their evidence reliable. I find no reason to come to a different conclusion. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in accepting their evidence and finding that the accused was found in possession of three litres of illicit arrack, as alleged by the prosecution. 8. The next question for consideration is whether the conviction under section 58 of the Abkari Act will lie against the accused. The incident occurred on October 10, 1995. At that time the arrack was not banned. By Notification S.R.O. No.89/69 the permissible quantity of arrack that can be possessed by a person during that period was 750 ml. That being so, the accused can only be found guilty of violations of sections 10 and 13 of the Abkari Act for having been in possession of arrack 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. Therefore, the conviction of the revision Crl.R.P.1071/02 4 petitioner under section 58 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. 9. 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/-. Accused was found to be in possession of only 1 ½ litrs of arrack. Therefore, I feel that a sentence of fine of Rs.2,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice. 10. In the result, the conviction of the revision petitioner under section 58 is set aside, he is convicted under sections 10 and 13 read with section 63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- , in default to undergo simple imprisonment for one month. One month's time is granted for payment of fine. The amount already deposited by the revision petitioenr, if any, before the trial court shall be adjusted towards the fine. His bail bonds are cancelled. The revision petiton isallowed in part as found above. P.Q.BARKATHALI, JUDGE mn Crl.R.P.1071/02 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P. No. 1071 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 17 th day of November, 2009.