IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Crl.Rev.Pet.No. 534 of 2000 CRA.297/1999 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.397/1996 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ACHUNELLIYIL BALAN S/O CHATHU, KUNNUMMEL AMSOM DESOM, VADAKARA TALUK BY ADV. SRI.SUNNY MATHEW RESPONDENTS/COMPLAINANT: THE EXCISE INSPECTOR EXCISE RANGE OFFICE NADAPURAM CRIME NO.72/96. REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.THOMAS AMBUKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.534 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January 2008 ORDER Petitioner was tried for an offence punishable under Section 55(a) of the Kerala Abkari Act and Rule 9 of the Foreign Liquor Rules. The trial court found him guilty and accordingly convicted and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- and in default to suffer simple imprisonment for a further period of two months. The Sessions court in appeal confirmed the above order of conviction and sentence. Hence, this revision petition. 2. The prosecution case in a nut shell was that the petitioner/accused was found in possession of ten bottles of 375 ML each (3750 ML) of Indian Made Foreign liquor (Royal gold Cup Whisky) while he was travelling in a stage carriage bearing Reg.No.KLN 4168. The bus was searched by PW1 and 2 at about 8.50 a.m. on July 14, 1996 near the Excise office at Kakkamvelli on Vadakara - Nadapuram Public road. Crl.R.P.No.534 OF 2000 2 3. PW1, the Excise Inspector and PW2, the Excise Guard were examined on the side of the prosecution and Exts.P1 to P5 and M.O.1 series were marked in the case. On an application filed by the accused contending that the court was not justified in proceeding with the case in view of the ruling of the Supreme Court in R.D.Sharma V. State of Bihar reported in 1998 Crl.L.J.4596, the learned Magistrate had closed the evidence on the side of the prosecution without examining the remaining witnesses. The learned Magistrate after closing the prosecution evidence, questioned the petitioner under Section 313 of the Code of Criminal Procedure. The accused had not adduced any defence evidence. The learned Magistrate on the basis of the evidence of PW1 and 2 had found the petitioner guilty under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and accordingly he was convicted and sentenced as stated earlier. 4. The learned Sessions Judge in appeal had concurred with the finding entered with by the learned Magistrate. Crl.R.P.No.534 OF 2000 3 5. Various contentions have been raised by the petitioner before this court while challenging the impugned order of conviction and sentence. 6. Having heard learned counsel for the petitioner and the learned Public Prosecutor, I am of the view that the impugned order of conviction and sentence is liable to be set aside on the short ground that the trial court had not granted sufficient opportunity to the prosecution to examine the remaining witnesses. It was recorded by the trial court that the driver and conductor of the bus and other witnesses were not examined in view of the decision of the apex court cited supra. In my view the prosecution ought to have been permitted to adduce further evidence in order to establish the case beyond reasonable doubt. Only the two official witnesses were examined, whose evidence was not corroborated by any independent witness. The other relevant or crucial aspects were also not proved. In this context, it may also be pointed out that the learned counsel for the petitioner has raised a contention that no charge under Rule 9 Crl.R.P.No.534 OF 2000 4 of the Foreign Liquor Rules had been framed against the petitioner. This is a matter which can be considered by the court below in accordance with law. 7. Further, a Constitution Bench of the Supreme Court in Ramachandra Rao V. State of Karnataka [2002 (2) KLT 189 (SC)] had held that the decision in Raj Deo Sharma (1) is no longer good law. Their Lordships held that it was neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. It was further held that the time limits or bars of limitation prescribed and the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and were therefore not good law. Their Lordships further observed thus: “The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time . . . . . . .” In view of the above dictum laid down by the Constitution Crl.R.P.No.534 OF 2000 5 Bench, I have no hesitation to hold that an appropriate trial had not been held in the case on hand. 8. Therefore, the order of conviction and sentence passed by the learned Magistrate and confirmed in appeal by the learned Sessions Judge is set aside. The case is remitted back to the trial court. It will be open to the prosecution and the defence to adduce further evidence. The court below shall dispose of the case as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. 9. Registry shall send back the records to the court below forthwith. Petitioner shall appear before the court below on February 21, 2008. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.534 OF 2000 6 A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.534 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 23rd Jan. 2008