IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 1723 of 2009() ------------------------------ CRA.272/2006 of ADDL.SESSIONS JUDGE(ADHOC-II), KASARAGOD SC NO.18 OF 2004 OF ASST. SESSIONS JUDGE, HOSDURG .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- ABRAHAM @ P.T.RAJU, AGED 34 YEARS, S/O.THOMAS, RESIDING AT MALAKKALLU, KALLAR VILLAGE, HOSDURG TALUK, P.O.MALAKKALLU. BY ADV. SRI.K.KESAVANKUTTY RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, HOSDURG RANGE. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1723 of 2009 -------------------------------------- Dated this the 4th day of August, 2009. ORDER This revision is in challenge of the judgment of learned Additional Sessions Judge (Adhoc-II), Kasaragod confirming conviction and modifying sentence for offence punishable under Section 55(a) of the Abkari Act (for short, “the Act”). Case is that on 15.9.2000 at about 8.30 a.m. petitioner was transporting illicit liqure meant for sale in Karnataka State alone. Courts below found that petitioner committed offence punishable under Section 55(a) of the Act. Appellate court however modified the substantive sentence. 2. Offence is said to have been detected by PW3, Preventive Officer. PW4 is said to have accompanied PW3 for patrol duty at the relevant time. Evidence of PWs 3 and 4 is that on 15.9.2000 at about 8.30 a.m. they reached near Kylas Theatre, Kanhagad and found petitioner carrying the contraband. On examination it was found that petitioner was carrying thirteen bottles of Indian Made Foreign Liqure. The sticker on it read that it is meant for sale in Karnataka State alone. Since all the bottles were identical, PW3 drew sample from one of the bottles and same as well as rest were packed, sealed and labelled and taken to custody as per Ext.P1, mahazar. Petitioner was arrested at the spot. Ext.P5 is the memo for arrest. Petitioner along with records and material objects were produced before PW2, Excise Inspector. PWs 1 and 2 have identified MOs 1 Crl.R.P.No.1723/2009 2 and 2 series as the container as well as rest of the bottles seized from the petitioner. PW2 has given evidence that PW3 produced the material objects before him on 15.9.2000. He registered case. Ext.P2 is the crime and occurrence report. PW2 sent the material objects to the court as per Ext.P3, property list. Ext.P4 is the copy of the forwarding note. PW2 also identified MOs 1 and 2 series, briefcase and thirteen bottles of the contraband. PW1 is the independent witness and attestor in Ext.P1. He admitted that he attested Ext.P1 but in chief examination did not say anything about the alleged incident. In cross-examination and re-examination he stated that he had not seen the incident. He denied that he saw the incident and signed Ext.P1 at the place of occurrence. PW5, Excise Inspector proved Ext.P6, report of chemical examination. Ext.P6 states that the contraband contained 41.72% by volume of ethyl alcohol. PW6 is the Village Officer who prepared Ext.P7, sketch. 3. It is contended by learned counsel that seizure of contraband is not proved. According to the learned counsel there is delay in producing the material objects in court. Oral and documentary evidence show that material objects were produced in the court on 16.9.2000 while detection of the offence was on the previous day. I am not inclined to think that merely because the material objects were produced in the court on 16.9.2000 and there happened a day's delay that affected the prosecution case. There is no case that material objects are tampered with. Witnesses have identified MOs 1 and 2 series. Crl.R.P.No.1723/2009 3 Evidence of PWs 3 and 4 get corroboration from Ext.P1, the contemporaneous record prepared at the time of incident. Thus there is evidence of seizure of contraband from the possession of petitioner. It is also in evidence that contraband which was meant for sale in Karnataka State alone was being transported by the petitioner through the State of Kerala. Therefore, conviction of petitioner for offence punishable under Section 55(a) of the Act required no interference. 4. So far as substantive sentence is concerned, learned Additional Sessions Judge (Adhoc-III) modified it as simple imprisonment for three months. Sentence of fine of Rupees one lakh was confirmed but default sentence of imprisonment for one month was provided. It is pointed out that petitioner had been in custody from 15.9.2000 to 19.10.2000. It is not shown that petitioner is involved in any other case. Considering the facts and circumstances of the case and that petitioner has already been in custody for thirtyfour (34) days, I am inclined to think that the substantive sentence can be modified and limited to the period of detention already undergone by him. There is no reason to interfere with the fine or default sentence provided by the appellate court. Resultantly this revision is allowed in part to the extent that substantive sentence awarded to the petitioner is modified, confined and limited to the period of detention already undergone by him from 15.9.2000 to 19.10.2000. In other Crl.R.P.No.1723/2009 4 respects revision petition will stand dismissed. Petitioner is granted time till 3.11.2009 to deposit fine in the trial court. In case of failure, petitioner has to appear in the trial court on 5.11.2009 to receive the default sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks