IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 410 of 2002 -------------------------------------------- CRA.665/1999 of SESSIONS COURT, KOZHIKOE CC.367/1998 of JFCM-II, THAMARASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: MOONTHOTUNGAL GOPI, S/O.KANNAN, KODENCHERRY, KOZHIKODE. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, KODENCHERRY BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 2763/2002 IN CRRP 410/2002 DISMISSED 22.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.410 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.367/1998 on the file of Judicial First Class Magistrate's Court-II, Thamarassery, who was convicted and sentenced for the offence under Section 55(a) of Abkari Act, filed this revision challenging the conviction and sentence, as confirmed by the learned Sessions Judge, Kozhikode in Crl.A.No. 665/1999. 2. Petitioner would contend that when PWs 1 and 2, the witnesses to Exhibit P1 seizure mahazar, turned hostile to the prosecution, courts below should not have relied on the oral evidence of PWs 3 to 6, the excise officials, alone, to convict the petitioner and the discrepancy in their evidence was not properly appreciated and in any case, conviction for the offence under Section 55(a) of Abkari Act is not legal, when there is no evidence CRRP 410/02 2 to prove that possession of the liquor seized was in the course of import or export. 3. Learned counsel appearing for the petitioner pointed out that PWs 1 and 2, the witnesses to Exhibit P1 mahazar, turned hostile and deposed that they did not attest Exhibit P1 mahazar at the scene of seizure and their signatures were obtained in blank paper and in such circumstances, in the absence of independent witnesses, to corroborate the evidence of the officials, the prosecution case should not have been believed. Learned counsel would argue that evidence of PWs 3 to 6 did not inspire confidence and for the sole reason that they are excise officials, courts below should not have believed their evidence and on the evidence, it should have been found that prosecution did not establish that petitioner was found in possession of fifty packets of arrack as alleged by the prosecution. Learned counsel also argued that investigation was conducted by the Sub Inspector of CRRP 410/02 3 Police, who effected the seizure and it is fatal. It is finally argued that in any case, conviction of the petitioner for the offence under Section 55 (a) of Abkari Act, in view of the Division Bench decisions of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845), is bad. 4. Learned Public Prosecutor submitted that PWs 4 to 6, the excise officials, proved the seizure and there is no reason to disbelieve their evidence and there is no rule or law that evidence of excise officials is insufficient to prove the seizure and courts below properly appreciated the evidence and there is no reason to interfere with the conviction or the sentence. 5. Though PWs 1 and 2, the witnesses to Exhibit P1 seizure mahazar, turned hostile to the prosecution, learned Magistrate and learned Sessions Judge, on appreciation of evidence of PWs 3 to 6, accepted the prosecution case and held that CRRP 410/02 4 petitioner was in possession of fifty packets of arrack, which was being sold on the side of the road near Vimala Talkies, Kodenchery. Though learned counsel argued that when PWs 1 and 2 turned hostile, evidence of Pws 3 to 6 should not have been believed, I cannot agree with the submission. There is no law or rule that when independent witnesses to the seizure mahazar turn hostile to the prosecution, evidence of the excise officials cannot be believed. Evidence of a police officer or an excise official is to be appreciated just like the evidence of any other witness. There is no reason either to disbelieve or to view his evidence with suspicion so long as his evidence is trustworthy, credible and reliable. I have gone through the evidence of PWs 3 to 6 and find no reason to interfere with the findings of the courts below that their evidence is trustworthy and reliable. Their evidence establish that petitioner was found in possession of fifty packets of arrack CRRP 410/02 5 at about 7.15 p.m. on 22.10.1997, for the purpose of sale at Kodenchery. Exhibit P5, the certificate of chemical examination, establishes that the sample packet which was sent for examination, contained 31-32% by volume of ethyl alcohol and the packets seized are arrack. 6. But, the crucial question is whether an offence under Section 55(a) of Abkari Act is attracted. In view of the Division Bench decisions of this Court in SurendraN's case and Mohanan's case (supra), petitioner cannot be convicted for the offence under Section 55(a) of Abkari Act for the sole reason that he was found in possession of fifty packets of arrack for the purpose of sale, unless that possession was in the course of export or import. Though the seized packets contained inscriptions in Kannada language, on that ground alone, it cannot be said that those packets were imported form Karnataka. Even in Kerala, such plastic packets could be printed with Kannada CRRP 410/02 6 inscriptions and therefore, for the Kannada letters found in the packets, it cannot be said that they were imported from Karnataka. As rightly pointed out by the learned counsel, PW4, the excise official, who conducted the investigation, did not conduct any investigation from where those packets were obtained by the petitioner, much less, whether it was imported from Karnataka. In such circumstances, conviction of the petitioner for the offence under Section 55(a) of Abkari Act is bad. 7. Then the question is what is the offence attracted. Though Section 58 of Abkari Act provides for punishment for possession of illicit liquor, as is clear from the section, it should be possession of illicit liquor, knowing the same to have been unlawfully imported, transported or manufactured. There is no case for the prosecution that petitioner was in possession of those packets of arrack with the knowledge that they were imported from Karnataka. In such circumstances, petitioner CRRP 410/02 7 cannot be convicted for the offence under Section 58 of Abkari Act. He can only be convicted as provided under Section 63 of Abkari Act. Under Section 63, whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act, is punishable as provided therein, if it is not otherwise made punishable under the Act. In such circumstances, petitioner could, definitely, be convicted for the offence under Section 63 of Abkari Act. 8. Then the question is what is the sentence. Section 63 provides for a maximum sentence of fine of Rs.2,000/-, as it stood on 22.5.1997, when the offence was committed. Though Section 63 of Abkari Act was subsequently amended and sentence of fine of Rs.5,000/- or imprisonment up to two years or both were provided for, it was amended only by Act 16 of 1997, which came into force on 3.6.1997. Therefore, petitioner could be sentenced only for CRRP 410/02 8 the maximum fine of Rs.2,000/- as provided on the date of commission of the offence. Revision is allowed in part. Conviction of the petitioner for the offence under Section 55(a) of Abkari Act is set aside. Petitioner is convicted and sentenced to a fine of Rs.2,000/- and in default, simple imprisonment for two months for the offence under Section 63 of Abkari Act. Judicial First Class Magistrate-II, Thamarassery is directed to execute the sentence. 22nd July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 410/02 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.410 of 2002 -------------------------- ORDER 22nd July, 2010