IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Crl.Rev.Pet.No. 1621 of 2008() ------------------------------ CRA.602/2005 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM SC.638/2000 of ASSISTANT SESSIONS COURT, NEDUMANGAD .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ K. BALAN, S/O. KUNJAN, SUDHA BHAVAN, KUTTYANI, VEMBAYAM VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.1621 of 2008 =================== Dated: 11.07.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C., the petitioner, who was the accused in S.C. No.638 of 2000 on the file of the Assistant Sessions Court, Nedumangad for offences punishable under Sections 58 and 8(2) of the Kerala Abkari Act, challenges the conviction entered and the sentence passed against him concurrently by the courts below for an offence punishable under Section 8(2) of the Kerala Abkari Act. 2. The case of the prosecution is that on 23.4.1998 at about 12 noon the petitioner was found in possession of 5 litres of illicit arrack in MO1 plastic can on the Kuttiyani-Vattappara road in front of the Sastha Temple at Kuttiyani and he has thereby committed the aforementioned offences 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 6 documents as Exts. Crl.R.P.No.1621/2008 -:2:- P1 to P6 and a black jerry can as MO1. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Assistant Sessions Judge, after trial, as per judgment dated 27.07.2005 found the revision petitioner guilty of the offence punishable under Section 8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and on default to pay the fine to suffer simple imprisonment for three months. On appeal preferred by the revision petitioner before the Sessions Court, Thiruvananthapuram as Crl.Appeal No.602 of 2005, the Additional Sessions Judge as per judgment dated 29.2.2008 dismissed the appeal, confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. The occurrence was on 23.4.98 when PW1, the Circle Crl.R.P.No.1621/2008 -:3:- Inspector of Excise, while of Patrol duty stumbled upon the revision petitioner to find him in possession of 5 litres of illicit arrack in MO1 jerry can. PW2, who was in the company of PW1 is an Excise guard. On having being satisfied that the liquid found in the can was arrack, PW1 after drawing a sample therefrom, seized the can as well as the sample bottle as per Ext.P1, mahazar to which PWs 3 and 4 subscribed their signature as independent witnesses. The further investigation was conducted by PWs. 5 and 6. During the course of the investigation, Ext.P4 requisition was submitted before the committal magistrate requesting the forwarding of the sealed sample bottle for chemical analysis. The said request was accepted and chemical analysis was conducted. Ext.P5 Chemical Analysis Certificate shows that the sample contains 30.72 percentage by volume of Ethyl Alcohol. The sample bottle was received in court on 24.04.98, that is, on the very next day of its seizure. It was sent from the court as per the covering letter of the Magistrate dated 1.5.98. Ext.P5 certificate shows that the sample bottle was received in the office of the chemical examiner with the seal in tact. Thus the contents of MO1 jerry can which Crl.R.P.No.1621/2008 -:4:- was found in the possession of the revision petitioner have been confirmed to be arrack. 7. I am not inclined to accept the submission made by the learned counsel for the petitioner that unless the certificate of analysis gives reasons as stipulated in the Chemico-Legal Examination Rules, it cannot be accepted without examining the Chemical Analyst. It is a document which is admissible without examining the analyst under Section 293 Cr.P.C. It reveals the various chemical tests conducted at the laboratory. The prosecution has been able to prove that the accused was found in possession of 5 litres of contraband liquid in MO1, jerry can and the said liquid has been confirmed to be arrack containing 30.72 percent by volume of ethyl alcohol. The conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 8. The sentence imposed on the revision petitioner also cannot be said to be harsh or disproportionately excessive. Crl.R.P.No.1621/2008 -:5:- Having regard to the fact that this killer brew has ruined several families, if at all the courts below have erred that was on the side of leniency in not awarding penal servitude by way of incarceration for more than one year. I, therefore, do not find any good reason to interfere with the sentence passed on the revision petitioner as well. It was submitted by the learned counsel for the petitioner that the petitioner is a cancer patient undergoing treatment. I am sure that in case the petitioner is arrested and committed to the appropriate central prison, proper medical care will be given to the petitioner. Accordingly, this Crl.R.P is dismissed. Dated this the 11 th day of July, 2008 V.Ramkumar, Judge. sj