IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.Rev.Pet.No. 1285 of 2003 ----------------------------------------------- CRA.450/1999 of III ADDL.SESSIONS COURT, KOZHIKODE CC.262/1997 of JFCM-I, THAMARASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: LAKSHMI, W/O. ANORAMAL SIVARAMAN, PUDUPPALLY AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.TOMY JOHN RESPONDENT/RESPONDENT/STATE: STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL. 5344/2003 IN CRRP 1285/2003 DISMISSED 29.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1285 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.262/1997 on the file of Judicial First Class Magistrate's Court-I, Thamarassery, was convicted and sentenced to simple imprisonment for one year and a fine of Rs.25,000/- and in default, simple imprisonment for three months for the offence under Section 55(a) of Abkari Act. Though petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.No.450/1999, learned Additional Sessions Judge confirmed the conviction and sentence and dismissed the appeal. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner did not appear, though revision was posted before this Court for the last several days. Hence, absence of the counsel was recorded and revision was posted to this day. Till 3.30 p.m. the counsel CRRP 1285/03 2 did not appear. Revision is, therefore, disposed on merits after hearing the learned Public Prosecutor and going through the records. 3. Prosecution case is that on 21.1.1997 at about 5 p.m., petitioner was found transporting two litres of illicit arrack in a plastic can having a capacity of five litres along Kythapoyil-Valliyad Public Road in contravention of the provisions of the Abkari Act and thereby committed offence under Section 55(a) of Abkari Act. 4. Petitioner pleaded not guilty. Prosecution examined five witnesses and marked five exhibits and identified MO1 can. 5. Learned Magistrate, on the evidence, found that evidence of PW1, the Excise Guard and PW2, the Detecting Officer, establish that while on patrol duty when PWs 1 and 2 reached in front of the house of Anorambil Karuppan, they found the petitioner carrying MO1 can containing two litres of illicit arrack and arrested her and seized MO1 can after CRRP 1285/03 3 preparing Exhibit P1 mahazar. She was released on bail on executing Exhibit P2 bond. Though PWs 3 and 4, the attesting witnesses to Exhibit P1 mahazar, turned hostile to the prosecution, learned Magistrate, being satisfied with the evidence of PWs 1 and 2, found that petitioner was in possession of two litres of illicit arrack and convicted her. 6. The question is whether evidence of PWs 1 and 2 with Exhibit P1 mahazar establish that petitioner was in possession of illicit arrack and if so, whether an offence under Section 55(a) of Abkari Act is attracted. 7. Learned Magistrate, who had occasion to note and appreciate the demeanour of PWs 1 and 2, on a proper appreciation of evidence, found that their evidence is trustworthy and reliable. Learned Additional Sessions Judge also, on re-appreciation of evidence, accepted their evidence as trustworthy and reliable. The fact that PWs 3 and 4, the CRRP 1285/03 4 attesting witnesses to Exhibit P1 mahazar, turned hostile to the prosecution is not a ground either to disbelieve PWs 1 and 2 or to view their evidence with suspicion. On going through the evidence of PWs 1 and 2, I find no irregularity or illegality in appreciating their evidence. 8. Though learned Magistrate and learned Additional Sessions Judge convicted the petitioner for the offence under Section 55(a) of Abkari Act, in the absence of a case for the prosecution that possession of illicit liquor by the petitioner was either in the course of export, import, transport or transit, an offence under Section 55(a) of Abkari Act is not attracted. The question is settled by the Division Bench of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845). Therefore, conviction of the petitioner for the offence under Section 55(a) of Abkari Act can only be set aside. CRRP 1285/03 5 9. Then the question is what is the offence attracted. Though Section 8 was inserted in the Act at that time, the original Section 8 was renumbered as sub-section (1) and sub-section (2) was inserted only later. Section 8, as it then stood, provides no punishment for the offence under Section 8 of Abkari Act. In such circumstances, petitioner could only be convicted for the offence under Section 58 of Abkari Act. 10. Then the question is what is the sentence to be awarded. Section 58, as it then stood, prior to the amendment of the Section by Act 16 of 1997, which came into effect on 3.6.1997, the sentence provided was fine which shall not be less than fifteen thousand rupees and imprisonment for a term which may extend to one year. Hence, there is a minimum fine of Rs.15,000/- and a maximum substantive sentence of imprisonment for one year. In such circumstances, interest of justice will be met if petitioner is sentenced to simple CRRP 1285/03 6 imprisonment for one month and a fine of Rs.15,000/- and in default, simple imprisonment for two months. Revision is allowed in part. Conviction of the petitioner for the offence under Section 55(a) of Abkari Act is set aside. Petitioner is found guilty of the offence under Section 58 of Abkari Act. She is convicted and sentenced to simple imprisonment for one month and a fine of Rs.15,000/- and in default, simple imprisonment for two months. Judicial First Class Magistrate-I, Thamarassery is directed to execute the sentence. 28th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1285/03 7 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1285 of 2003 -------------------------- ORDER 28th June, 2010