IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Crl.Rev.Pet.No. 646 of 2001() ----------------------------- CRA.104/1997 of SESSIONS COURT, KASARAGOD STC.3364/1995 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- KORAN AGED 65 YEARS RESIDING AT DASADKAM ADOOR VILLAGE URDOOR P.O. KASARGOD TALUK KASARGOD DISTRICT BY ADV. SRI.M.SASINDRAN SRI.BEPIN VIJAYAN RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.646 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of September , 2009 ORDER The revision petitioner is the accused in S.T.C.No.3364 of 1995 of the Judicial First Class Magistrate Court, Kasargod and the appellant in Crl.Appeal No.104/1997 of Sessions Court, Kasargod. The revision petitioner was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 15,000/- , in default, to undergo simple imprisonment for a further period of three months. His conviction and sentence was confirmed in appeal by the Sessions Judge. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court is that on 07/08/1995 at about 3.30 p.m., the accused was found in possession of 2 litres of illicit Arrack at Thalpanchery and thereby committed the offence punishable under Section 58 of the Abkari Act. On appearance before the trial court, the accused pleaded not guilty to a charge under Section 58 of the Abkari Act. PWs 1 to 4 Crl.R.P.No.646/09 Page numbers were examined and Exts.P1 to P13 were marked and MO1 was produced by the prosecution before the trial court. When questioned under Section 313 Cr.P.C. by the trial court, the accused denied the entire incident. No defence evidence was adduced. 3. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 58 of the Abkari Act, convicted him and sentenced him as aforesaid. On appeal by the accused, his conviction and sentence was confirmed. Now the accused has come up in revision challenging his conviction and sentence. 4. The counsel for the revision petitioner argued that even if the entire case of the prosecution is believed, the accused cannot be convicted under Section 58 of the Abkari Act and at the most, he can be found guilty under Section 63 of the Abkari Act for having been in possession of liquor in excess of the quantity prescribed. The Public Prosecutor on the other hand would support the judgment of both the courts below. 5. The following points arise for consideration : 1) Whether the conviction of the revision Crl.R.P.No.646/09 Page numbers petitioner under Section 58 of the Abkari Act by both the courts below can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. PWs 1 to 4 were examined and Exts.P1 to P3 and MO1 were marked on the side of the prosecution. PW1 is the preventive officer attached to the Excise Circle Office, Kasargod. PW2 is the Circle Inspector attached to Excise Circle, Kasargod. They testified before the trial court that while they were on petrol duty, they found the accused with 2 litres of illicit Arrack. Ext.P1 is the seizure mahazer. Ext.P2 is the chemical analysis report which shows that the article seized from the accused is arrack. Ext.P3 is the occurrence report. 7. I have gone through the evidence of PWs 1 and 2. There was nothing to suspect their credibility. The trial court as well as the lower appellate court has chosen to believe their evidence. I find no reason to come to a different conclusion. Counsel for the revision petitioner argued that as PWs 3 and 4, independent witnesses, turned hostile and did not support the prosecution, the evidence of PWs 1 and 2 could not be believed. I am unable to agree. It is settled law that the Crl.R.P.No.646/09 Page numbers evidence of official witnesses can be relied on if their evidence are found credible and trustworthy. In the present case, no serious discrepancies were pointed out in the evidence of PW1 and PW2. No previous enmity with the accused is also suggested during their cross examination. Therefore, I am inclined to believe the evidence of PWs 1 and 2 regarding the incident. Accepting their evidence, I confirm the finding of the trial court as well as the lower appellate court that the accused was found in possession of 2 litres of illicit arrack on 07/08/1995 at about 3.30 p.m. as alleged by the prosecution. 8. The next question is whether the accused can be said to have committed an offence punishable under Section 58 of the Abkari Act ? Even if the entire case of the prosecution is believed, I feel that the accused cannot be convicted under Section 58 of Abkari Act. It is the admitted case that during that period arrack was not prohibited . The maximum quantity of arrack that can be possessed without permit was 7.50 ML. as prescribed under SRO 89/69 dated 09-02-1969. That being so, the accused can be found guilty of only under Section 10 and 13 of the Abkari Act for having been possession of liquor in excess of the permissible quantity prescribed by the above Crl.R.P.No.646/09 Page numbers said government order which is an offence punishable under Section 63 of the Abkari Act. Therefore, I convict him thereunder. 9. The maximum sentence prescribed under Section 63 of Abkari Act before amendment was a fine of Rs. 2000/- only. Taking into consideration the fact that the revision petitioner is aged about 73 now and that the incident occurred in 1995 and that he was found in possession of only 2 litres of arrack, I feel that a sentence of fine of Rs. 1000/- would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 58 of the Abkari Act is set aside. He is convicted under Section 10 and 13 read with Section 63 of the Abkari Act. Taking into consideration the age of the accused and the nature of the offence committed, the revision petitioner is sentenced to pay a fine of Rs. 1000/- , in default, to undergo simple imprisonment for one week under Section 63 of Abkari Act . One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.646/09 Page numbers