IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Crl.Rev.Pet.No. 138 of 2002() -------------------------------------- CRA.126/1998 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.837/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .............................................................. REVN. PETITIONER / APPELLANT/ ACCUSED --------------------------------------------------------------- SOBHANA, W/O.RAMANKUTTY, KADANGATH HOUSE, ATHOLI AMSOM, VELUR DESOM. BY ADV. SRI.M.RAMESH CHANDER SRI.M.VIJAYAKUMAR RESPONDENTS / RESPONDENTS / COPMPLAINATS AND STATE ------------------------------------------------------------------------------------------ 1. EXCISE INSPECTOR, BALUSSERY. 2. STATE OF KERALA, REP. BY PUBIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J ------------------------------------- Crl.R.P.NO. 138 OF 2002 -------------------------------------- Dated this the 8th day of March, 2010. O R D E R On 20.11.1995, PW1 Balakrishnan Nair, a Preventive Officer attached to Excise Enforcement and Anti Narcotic Special Squad was moving on patrol duty along with Excise party. While moving so, at about 11.30 a.m, when they reached at the pathway on the southern side of the house of one Pokkath Khadar at Atholi amsom, Velur desom, the revision petitioner was found coming across the party with a plastic can in her hand. Seeing the Excise party, the revision petitioner turned away. Being got suspicious, she was intercepted and the contents of the plastic can was tested by smell and taste. PW1 found that the plastic can having a capacity of 5 litres contained of 2 litres of illicit arrack. The revision petitioner was arrested then and there. The plastic can with the contraband liquid was seized for which Ext.P1 mahazar was prepared and 180 ml. of arrack was separately taken as sample in a bottle and sealed then and there. Ext.P1 also contains narration regarding the sampling. PWs.2 and 3 are attestors in Ext.P1 Mahazar. The revision Crl.R.P.NO. 138 OF 2002 2 petitioner was released on bail. The material objects along with Ext.P1 was first produced at the Excise Enforcement and Narcotic Special Squad office at Kozhikkode. From there, it was produced before PW4, the then Excise Inspector. PW4 registered a case as Crime No.201/1995 and proceeded with investigation. The sample bottle was forwarded to the Chemical Examiner along with Ext.P3 requisition dated 22.11.2005. After examination, it was reported by Ext.P4 that the sample contained 24.38 percent by volume of ethyl alcohol. Consequently, after completing the investigation the charge sheet was filed before the Judicial Magistrate of First Class, Quilandy alleging offence u/S.58 of the Abkari Act. 2. The revision petitioner pleaded not guilty. So, she was sent for trial. On the side of the prosecution, PWs.1 to 4 were examined. Ext.P1 to P4 and MO1 were marked. After closing the evidence for the prosecution the revision petitioner was questioned u/S.313 of the Code of Criminal Procedure. She denied incriminating evidence. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently she was convicted and sentenced to Simple Imprisonment for 6 months and a fine of Rs.15,000/- with default clause to undergo Simple Crl.R.P.NO. 138 OF 2002 3 Imprisonment for 3 months. 3. Aggrieved by the above conviction and sentence Criminal Appeal 126/1998 was filed before the Sessions Judge, Kozhikkode. The 3rd Additional Sessions Judge to whom the appeal was made over, by judgment dated 30.11.2001, dismissed the appeal after confirming the conviction and sentence. Assailing the legality,correctness and propriety of the conviction and sentence as confirmed in appeal, this revision petition was filed. 4. In support of the prosecution case, there is only the oral testimony of PW1 and the seizure of the material object. PW2 and 3 turned hostile. According to the learned counsel for the revision petitioner, since PW2 and PW3 who are the independent witnesses, turned hostile, it is not safe to rely on the solitary evidence of PW1 to convict the revision petitioner. 5. The learned counsel had taken me through evidence of PW1. On a careful and critical reading of the evidence of PW1, I find that, in fact, no material was disclosed to disbelieve PW1, who narrated the arrest and seizure of the contraband articles from the revision petitioner. There is no suggestion to PW1 that he was anyway motivated against the revision petitioner so as to cook up a Crl.R.P.NO. 138 OF 2002 4 case like the one on hand against the revision petitioner. In fact, the arrest and seizure is not much challenged in cross examination. The evidence of PW1 is corroborated by Ext.P1. On a critical analysis of the evidence of PW1, I find that the courts below had correctly apprised the evidence of PW1 supported by Ext.P1 and rightly believed him. 6. The evidence of PW4, the Excise Inspector would show that MO1 along with the sample bottle was produced before him, and on the second day, along with Ext.P3 request, the sample was forwarded to the Chemical Examiner who by Ext.P4 reported that the sample contained 24.38 percent ethyl alcohol by volume. Ext.P4 is not much challenged. There is no delay in forwarding the sample for chemical examination. There is nothing to show that the sample forwarded for the chemical examiner is not the one seized by PW1 from the revision petitioner. Hence, the courts below had rightly given reliance to the testimony of PW1 and correctly arrived a conclusion that the revision petitioner was found possessing two litres of illicit arrack. I find that the courts below were right in finding that the revision petitioner is guilty for the offence alleged. The conviction is sustainable. Crl.R.P.NO. 138 OF 2002 5 7. Regarding sentence, on gender consideration and for the reasons that the revision petitioner had been suffering the embarrassment of prosecution for the last 15 years and now she is aged 50 years, I find that she is entitled to a little leniency in sentence. Taking into account of the penal provision then existing and the attendant circumstances, I find that sentence of imprisonment till rising of court and fine of Rs.3,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction the sentence is reduced to imprisonment till rising of court and fine of Rs.3,000/- (Rupees three thousand only). In default of payment of fine, the revision petitioner shall undergo Simple Imprisonment for 3 months. The revision petitioner is granted 2 months time to pay the fine. Till then, the bail bond executed by her shall remain in force. P.S.GOPINATHAN,JUDGE. pm Crl.R.P.NO. 138 OF 2002 6