IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.Rev.Pet.No. 1425 of 2003(D) ------------------------------- CRA.99/1989 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD STC.1330/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): /ACCUSED/APPELLANT ------------------------------------------------- NARAYANAN, S/O.KOTTAN, AGED 41 YEARS, ATHIRKAYAM DESOM, PULLUR VILLAGE, HOSDURG TALUK. BY ADV. SRI.M.RAMESH CHANDER SRI.V.TEKCHAND RESPONDENT(S): RESPONDENT ------------------------- 1. EXCISE INSPECTOR, HOSDURG RANGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P .No.1425 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009 ORDER Revision petitioner is the accused in ST.No.1330/1996 of Judicial First Class Magistrate Court, Hosdurg and appellant in Crl.Appeal No. 99/99 of Additional Sessions Judge (Adhoc I) Kasargod. The revision petitioner/accused was convicted of the offence punishable under Section 58 of the Abkari Act and sentenced to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for three months which is confirmed in appeal. The accused challenges his conviction and sentence in this revision petition. 2. The case of prosecution as shaped in evidence before the trial court was that on August 28, 1995 at about 11.05 hrs, the accused was found in possession of 2 litres of illicit arrack in a 5 litre cannas at Ethirkayam desom in Punaur village and thereby committed the offence punishable under Section 58 of the Abkari Act. 3. When the accused appeared before the trial court, he Crl.R.P.No.1425/2003 Page numbers pleaded not guilty to a charge under Section 58 of the Abkari Act. On the side of prosecution, PWs 1 to 4 were examined and Exs.P1 to P3 and MO1 were marked. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. No defence evidence was adduced. 4. On an appreciation of evidence, the trial court found the revision petitioner guilty of the offence punishable under Section 58 of the Abkari Act and sentenced him to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for three months. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. Now the accused has come in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 58 of the Abkari Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is Crl.R.P.No.1425/2003 Page numbers excessive or unduly harsh ? Point No.1 6. To establish the case, the prosecution examined PWs 1 to 4 and marked Exts.P1 to P3 and MO1 before the trial court. PW1 is the preventive officer who detected the case. He testified in terms of the prosecution case. I have gone through the evidence of PW1. No serious inconsistencies were brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P3. Therefore, the trial court and the lower appellate court are perfectly justified in believing the evidence of PW1 regarding the incident. 7. PWs 2 and 4, the independent eye witnesses, turned hostile and did not support the prosecution. PW3 is the Excise Inspector who laid the charge before the trial court. Counsel for the petitioner submitted that the percentage of ethyl alcohol in the liquor seized from the accused person was less than the percentage prescribed for the illicit arrack and that therefore the accused cannot be found guilty of possession of illicit arrack. I find no force in the above submission. Crl.R.P.No.1425/2003 Page numbers Ext.P3 chemical analysis report shows that the sample contains ethyl alcohol which itself shows that the liquor seized from the accused is illicit arrack. 8. Accepting the evidence of PW1 and Exts.P1 to P3, I hold that the trial court as well as the lower appellate court are justified in believing the evidence of PW1 and coming to the conclusion that the accused was found in possession of 2 litres of illicit arrack in a 5 litre cannas on 28-08-1995 at about 11.05 hours at Ethirkayam desom in Punaur village. 9. The next question for consideration is whether charge under Section 58 will lie against the accused. The incident occurred on 28-08-1995. At that time, the arrack was not banned by the government. The maximum quantity of arrack that can be possessed by a single person is 750 ML as seen from S.R.O. No.89/1969 dated 09-02-1969. That being so, the accused can be found guilty of only having been in possession of liquor in excess of the quantity prescribed which is an offence prescribed under Sections 10 and 11 of Abkari Act and punishable under Section 63 of the Act. Therefore, I convict the Crl.R.P.No.1425/2003 Page numbers revision petitioner under Sections 10 and 11 read with Section 63 of the Abkari Act. Point No.2 As regards the sentence, during 1995 before amendment punishment prescribed under Section 63 of Abkari Act is only a fine of Rs. 2,000/-. Therefore, the revision petitioner is sentenced to pay a fine of Rs. 2,000/- under Section 63 of the Abkari Act, in default, to undergo simple imprisonment for one month. 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.1425/2003 Page numbers