IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 504 of 2001() ----------------------------- C.C.NO.136/96 OF J.F.C.M-II, THAMARASSERY REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- ASOKAN, AGED 50 YEARS, S/O. ODIYANGAL APPU, THIRUVAMBADI AMSOM CHEROOPRA DESOM, KOZHIKODE. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP. BY ITS EXCISE INSPECTOR, KUNNAMANGALAM, KOZHIKODE DISTRICT PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.504 of 2001 ---------------------------------------- Dated this the 18th day of June 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.58 of the Kerala Abkari Act. The petitioner/accused now faces a sentence of rigorous imprisonment for a period of three months and to pay a fine of Rs.1,000/- and in default, to undergo rigorous imprisonment for a further period of one month. 2. The crux of the allegations against the petitioner is that on 27/8/1995 he was found to keep in his possession and transporting 2 litres of arrack. He was intercepted by an Excise party led by P.W.4 in which P.W.1 was a member. 3. The accused denied the offence alleged against him and thereupon P.Ws.1 to 4 were examined and Exts.P1 to P4 were marked. P.W.2 is an independent witness. He turned hostile to the prosecution; but admitted his signature in Ext.P1. P.W.3 is the Excise Inspector before whom the matter was reported and the occurrence report Ext.P2 was registered. Ext.P1 is the mshazar. Ext.P2 is the occurrence report. Ext.P3 is the requisition and Ext.P4 is the Chemical Examiner’s report. Crl.R.P.No504/09. 2 4. The courts below concurrently came to the conclusion that the oral evidence of P.Ws.1 and 4 can safely be believed and when believed, their evidence along with the other materials produced establishes the offence punishable under Sec.58 of the Abkari Act. 5. Before me, the learned counsel for the petitioner and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned concurrent judgments on the following grounds: (i) The courts below erred grossly in placing reliance on the oral evidence of P.Ws.1 and 4. (ii) The sentence imposed is, at any rate, excessive. 6. Ground No.1: The learned counsel for the petitioner submits that the court below should not have placed reliance on the oral evidence of PWs 1 and 4. They are excise officials. They are interested in the prosecution. Their evidence inter se is contradictory and incongruent. Reliance cannot be placed on their evidence, contends the learned counsel for the petitioner. 7. I have gone through the evidence of Pws 1 and 4. Pws 1 and 4 are of course excise officials. It is a part of their official duty to detect offences and bring the offenders to book. It can therefore Crl.R.P.No504/09. 3 definitely be said that Pws 1 and 4 are interested in the successful prosecution of the petitioner. But this interest, in successful prosecution which every conscientious excise official is expected to have, cannot relegate Pws 1 and 4 to the category of interested witnesses for whose testimony independent corroboration ought to be insisted. I have gone through the cross-examination of Pws 1 and 4. There is not a semblance of a suggestion that Pws 1 and 4 or any other excise officials have any motive, reason or ground to falsely implicate the petitioner in such a prosecution. In these circumstances , I am satisfied that the oral evidence of Pws 1 and 4 deserves to be approached fairly, reasonably and carefully; but without any undeserved doubt, suspicion or distrust. 8. The evidence of Pws 1 and 4 get eminent support and corroboration from the contents of the contemporaneous seizure mahazer. Pw2 is examined as an independent witness who was present at the time of seizure. That witness did not support the prosecution case though he admitted his signature in Ext.P1. Criminal courts in this country do come across several instances where the alleged independent witnesses do not support the prosecution case fully. Such hostility of the alleged independent Crl.R.P.No504/09. 4 witnesses cannot ipso facto deliver any advantage or benefit to an indictee. In the instant case, it is relevant to note that no motive is alleged against Exts.PW1 and PW4 to foist a false case. The contents of the contemporaneous seizure mahazer, the signature in which is admitted by PW2 goes a long way to offer assurance to the courts for the oral evidence of Pws 1 and 4. 9. The learned counsel for the revision petitioner submits that at the relevant time the possession of arrack was not banned and therefore possession and transportation of arrack by itself is not objectionable. The learned Public Prosecutor promptly points out that at the relevant time, a person could not have carried arrack in excess of 750 ml without the requisite permission/authority under Section 10 and 13 of the Kerala Abkari Act. The petitioner was found to transport 2 litres of arrack and such transportation is without any authority of law. The petitioner was himself transporting the same and it is up to him to show that the transportation was not in contravention of the provisions of the Act and Rules. There is absolutely no attempt on the part of the petitioner to contend that the transportation was legal or justified. I do not also find any merit in the contention that Section 58 of the Crl.R.P.No504/09. 5 Kerala Abkari Act cannot apply to a person who was himself possessing and transporting the liquor. When a person is intercepted with liquor in his possession and he was in the process of transportation, he cannot be heard to contend that Section 58 does not apply to him. Such possession of the transporter when intercepted, in the absence of better explanation must be assumed to be with the requisite contumacious knowledge of illegal transportation. Section 10 would then be clearly violated. I find no merit in the contention that possession of the transporter with the requisite contumacious knowledge that the liquor was being illegally transported cannot attract Section 58 of the Kerala Abkari Act. 10. I do not, in these circumstances, find any merit in the contention that the verdict of guilty and conviction are liable to be interfered with. The challenge on the first ground falls. 11. The learned counsel for the petitioner contends that at any rate sentence imposed is excessive. At the relevant time, that is 27/8/1995, the Kerala Abkari Act had been amended under Act 12/95 with effect from 05/08/1995. On the relevant date that is 27/8/95 (until the act was later amended by Act 16/97 with effect Crl.R.P.No504/09. 6 from 3/6/97), the punishment for the offence under Section 58 of the Kerala Abkari Act was a minimum fine of Rs.15,000/- and imprisonment which may extend to one year. There was no minimum substantive sentence fixed by law. The learned counsel for the petitioner submits that the passage of a period of about 1 ½ decades may be taken into consideration. The learned counsel points out that even according to the prosecution, 2 litres of arrack is what he was alleged to possess and possession up to 750 ml was not objectionable. The learned counsel further points out that there is no case for the prosecution that the petitioner is involved in any other offence. The petitioner has endured the trauma of the prosecution for the past about 1 ½ decades. The sentence may, in these circumstances suitably be modified and reduced, argues the learned counsel. 12. I am satisfied that there is merit in the plea for leniency. In the facts and circumstances of this case, I am satisfied that imposition of the minimum sentence of fine coupled with substantive sentence of imprisonment till rising of court shall eminently meet the ends of justice. This Crl.R.P succeeds only to the above extent. Crl.R.P.No504/09. 7 13. In the result, a) This Crl.R.P is allowed in part. b) The verdict of guilty and conviction of the petitioner under Section 58 are upheld. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.50,000/- (Rupees fifty thousand only) as fine and in default, to undergo S.I for a period of two months. 14. The petitioner shall have time till 17/8/2009 to appear before the learned Magistrate and serve the modified sentence imposed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date. The modified sentence shall not be executed till that date. (R.BASANT, JUDGE) jsr Crl.R.P.No504/09. 8 Crl.R.P.No504/09. 9 R.BASANT, J Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001