IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.Rev.Pet.No. 2677 of 2009() ------------------------------ CRA.75/2008 of SESSIONS COURT, TRIVANDRUM SC.850/2004 of ASSISTANT SESSIONS COURT, NEYYATTINKARA .................... REVN. PETITIONER(S): --------------------- BABU, C.NO.2251, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.KRISHNAKUMAR.R. (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.S.HRITIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P. No. 2677 of 2009 --------------------------------------- Dated this 26th day of August 2009 ORDER This revision is in challenge of judgment of learned Sessions Judge, Thiruvananthapuram in Criminal Appeal No. 75 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 8(1) and (2) of the Abkari Act (for short, “the Act”). Case is that on 28-10-2001 at about 1p.m petitioner was found carrying about four litres of illicit arrack in a jerry Can. Courts below found in favour of the prosecution. It is contended by learned counsel appointed on State brief that the finding is not correct. 2. PW2, Preventive Officer is said to have detected the offence. PW3, also a Preventive Officer accompanied PW2 at the relevant time. Their evidence is that on 28-10-2001 while they were on patrol duty and reached the place of occurrence at about 1 p.m they found petitioner carrying a plastic Can which on examination was found to contain four litres of illicit arrack. PW2 collected sample and the same as well as the rest were seized as per Ext.P1 mahazar. Petitioner was arrested at the spot. Petitioner, the relevant records and material objects were produced before the Excise Inspector. PWs.1 and 4 attested Ext.P1. They admitted signing Ext.P1 but refused to support the prosecution. PW1 admitted that he had seen petitioner being taken to the jeep. PW6, the clerk of the Judicial First Class Magistrate court stated that the material objects were received in that court on 29-10-2001. He entered the same in the thondi register. Crl.R.P.No.2677 of 2009 -2- Ext.P4 is the true copy of that register showing that the material objects were received on 29-10-2001. Ext.P5 is the forwarding note for sending the sample for chemical examination. Accordingly sample was sent for chemical examination. PW3 registered the case against the petitioner. Ext.P2 is the occurrence report. PW5, Circle Inspector conducted the investigation. Ext.P3 is the report of chemical examination which states that the sample contained 31.12% by volume of Ethyl Alcohol. 3. It is contended by learned counsel that there is no acceptable evidence to prove the alleged incident, PWs.1 and 4 having refused to support the prosecution. A further contention is that since PW3 was senior to PW2, the detection ought to have been done by PW3. So far as that contention is concerned, learned Assistant Sessions Judge observed that it was as per a court order that subsequently PW3 became senior to PW2. So far as the incident is concerned there is the evidence of PWs2 and 3 whose evidence is supported by Ext.P1, the contemporaneous record prepared by PW2. PWs.1 and 4 though did not support the prosecution admitted signing Ext.P1. PW1 also admitted that petitioner was taken in the jeep. In these circumstances, I do not find reason to disbelieve the evidence of Pws.2 and 3. It is proved that at the relevant time petitioner was found in possession of illicit arrack. Conviction therefore require interference. Crl.R.P.No.2677 of 2009 -3- 4. Learned Assistant Sessions Judge sentenced petitioner to undergo rigorous imprisonment for three years, payment of fine of Rs. One Lakh and in default of payment to undergo simple imprisonment for six months. It is seen that petitioner is undergoing imprisonment from 25-10-2007 onwards. It is not shown that petitioner is involved in any other case. Hence I am satisfied that the period of imprisonment already undergone by him is sufficient so far as substantive sentence is concerned. The default sentence for non payment of compensation is modified as simple imprisonment for one month, also taking into account the period of detention already undergone by petitioner. Resultantly, this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified, confined and limited to the period of imprisonment already undergone by petitioner. 2. While retaining the sentence of fine default sentence is modified as simple imprisonment for one month. The trial court shall forthwith issue modified warrant to the Superintendent of the Prison concerned where petitioner is detained. THOMAS P. JOSEPH, JUDGE Sbna/