IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 2652 of 2003 ---------------------------------------------- CRA.69/2002 of SESSIONS COURT, THRISSUR ST.2314/1997 of JFCM-I, THRISSUR .................... REVN. PETITIONER/APPELLANT/1st ACCUSED: VIDYASAGAR, AGED 35, S/O GOPALAN, VELLAROTTIL HOUSE, VELLOOR, THALAPPILLY TALUK, THRISSUR DIST. BY ADV. SRI.JIJO PAUL RESPONDENT/RESPONDENT/STATE & COMPLAINANT: STATE OF KERALA REP. BY THE EXCISE INSPECTOR, THRISSUR RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 31. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2652 of 2003 -------------------------- ORDER Petitioner, the first accused in S.T.No. 2314/1997 on the file of Judicial First Class Magistrate's Court-I, Thrissur, filed this revision challenging the concurrent conviction and sentence for the offence under Section 58 of Abkari Act. Prosecution case is that at about 2 a.m. on 24.8.1996, PW1, the Preventive Officer and PW4, the Excise Inspector of Anti Narcotic Special Squad found tempo van KL-8/8418, parked on the side of the patrol bunk at Swaraj Round, Thrissur. Seeing the Excise party, petitioner, who was inside the vehicle, tried to open the door and escape and doubting his conduct, they stopped him and examined the van. It was found that underneath the 6700 eggs stored in the van, 84 cases of Indian Made Foreign Liquor containing 12 bottles of 750 ml. each and 54 cases containing 24 bottles of 375 ml. each. When CRRP 2652/03 2 one bottle each from the cases were opened, they got satisfied that it is Indian Made Foreign Liquor. Petitioner was arrested. The opened bottles were sealed and along with the remaining bottles seized, Exhibit P1 seizure mahazar was prepared. The sealed bottles, were produced before the court with a request to send for chemical analysis. Exhibit P5 report was obtained. It shows that the sample contained 38.90% by volume of ethyl alcohol. After completing the investigation, charge was laid, which was taken cognizance by the learned Magistrate for the offence under Section 58 of Abkari Act against the petitioner as the cleaner and the second accused driver and third accused, owner of the tempo van. 2. All the accused pleaded not guilty. Prosecution examined six witnesses and marked Exhibits P1 to P5. Accused did not adduce any evidence. 3. Learned Magistrate, on the evidence, found accused 2 and 3 not guilty of the offences, as CRRP 2652/03 3 there is no evidence to prove that they were in possession of the contraband articles. Accepting the evidence of PWs 1 and 4, though PWs 2 and 3, the independent witnesses, turned hostile to the prosecution, learned Magistrate convicted the petitioner for the offence under Section 58 of Abkari Act. He was sentenced to simple imprisonment for three months and a fine of Rs.15,000/- and in default, simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No. 69/2002. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Learned counsel argued that evidence of PW1 establishes that no sample was taken at the time of seizure and therefore, based on Exhibit P5 report, courts below should not have convicted the CRRP 2652/03 4 petitioner. Learned counsel also argued that as per Exhibit P5 report, the sample examined was only 700 ml. + 300 ml., which together make only one litre and therefore, there is no evidence to prove that the quantity of Indian Made Foreign Liquor was in excess of the permissible limit and hence, the conviction is not sustainable. Learned counsel finally argued that the period of detention he had already undergone is to be adjusted towards the sentence, in case the conviction is to be confirmed. 6. Though PW1, in cross-examination, to a question put by the counsel appearing for the petitioner, deposed that no sample was taken, as is clear from his evidence, he was only answering that no sample, out of the bottles was taken. Exhibit P1 mahazar with the evidence of PW1 corroborated by the evidence of PW4, establish that when PWs 1 and 4 examined the van, they detected 54 cases of Indian made Foreign Liquor, each case containing 24 bottles and each bottle having a capacity of 375 CRRP 2652/03 5 ml. and 84 cases of Indian Made Foreign Liquor, each case containing 12 bottles and each bottle having a capacity of 750 ml., concealed beneath the eggs being transported in the van. PWs 1 and 4 opened two bottles, namely, one bottle having a capacity of 750 ml. and the other having a capacity of 375 ml. and verified what it contained and got satisfied that it was Indian Made Foreign Liquor. All the bottles were seized. The opened two bottles were separately sealed. Evidence of PW1, in cross- examination, is only to the effect that apart from sealing of the said two bottles, no separate sample was taken. Those two bottles were produced in court. The other bottles were confiscated as provided under Section 67B of Abkari Act. Evidence establish that the two bottles seized and sent for all chemical analysis were the representative samples of the bottles. Therefore, based on the evidence of PW1, relied on by the learned Magistrate, it cannot be said that no sample was taken. So also, for the reason that the capacity of CRRP 2652/03 6 the two bottles, which were sent to the Laboratory, is less than the permissible limit of Indian Made Foreign Liquor, which could be in the possession of a person, it cannot be said that an offence under Section 58 of Abkari Act is attracted. Evidence is that there were 24 bottles, each containing 375 ml. in 54 cases and 12 bottles, each containing 750 ml. in 84 cases. The quantity is huge and not within the permissible limit. As rightly found by the courts below, evidence establish that those bottles of Indian Made Foreign Liquor are not lawfully manufactured or transported. It is proved that petitioner, who was found in the van, when the Indian Made Foreign Liquor was being transported, has been in possession of the same with the knowledge that they are unlawfully manufactured or transported. In such circumstances, conviction of the petitioner for the offence under Section 58 of Abkari Act is perfectly legal. 7. Then the question is regarding the sentence. Learned Magistrate sentenced the petitioner only to CRRP 2652/03 7 simple imprisonment for three months and a fine of Rs.15,000/-. The fine awarded by the learned Magistrate is the minimum sentence provided as on the date of commission of the offence. Even though the sentence provided is imprisonment which may extend to one year at that time, learned Magistrate sentenced the petitioner only to simple imprisonment for three months. In such circumstances, the sentence is also reasonable. There is no merit in the revision. Revision is dismissed. It is made clear that petitioner is entitled to get set off for the period he has been in custody before charge was framed and subsequent to the conviction, if any. Petitioner is directed to appear before Judicial First Class Magistrate-I, Thrissur on 03.09.2010. The Magistrate is directed to execute the sentence. 28th July, 2010 (M.Sasidharan Nambiar, Judge) tkv