IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 25 of 2001() ---------------------------- CRA NO.224/1997 OF SESSIONS COURT, KASARAGOD CC NO.329/1996 OF JUDICIAL FIRST CLASS MAGISTRATE II, HOSDURG REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- KOODOL NARAYANI, W/O.KOODOL MOHANAN, KOODAL DESOM, PARAPPA VILLAGE, HOSDURG TALUK. BY ADV. SRI.T.P.VARGHESE RESPONDENT/RESPONDENT/COMPLAINANT: ---------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, NELESWAR RANGE. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.25 of 2001 -------------------------------------- Dated this the 23rd day of September, 2008. ORDER The Excise Inspector, Nileshwar filed complaint against the revision petitioner alleging offence punishable under Section 58 of the Abkari Act. The case is that on 17.3.1996 at about 3 p.m. the revision petitioner was found in possession of 2 ½ litres of illicit arrack. The learned Magistrate found the revision petitioner guilty, convicted and sentenced her to undergo rigorous imprisonment for three months and to pay fine of Rs.15,000/-. Revision petitioner preferred an appeal to the Sessions Court, Kasaragod. When the appeal was taken up for hearing on 29.11.2000, the revision petitioner remained absent and there was no representation. The learned Sessions Judge dismissed the appeal. The revision petitioner is aggrieved and hence this revision. 2. Heard both sides. The learned counsel for the revision petitioner submitted that the disposal of the appeal by the learned Sessions Judge is not in accordance with Section 354(1)(b) of the Code of Criminal Procedure. The judgment of the Sessions Court does not contain the point or points for determination, the decision thereon and the reasons for such decision. The learned counsel placed reliance on the decisions in State of Punjab v. Bhag Singh ((2004) 1 SCC 547), Zahira Habibullah Sheikh v. State of Gujarat Crl.R.P.No.25/2001 2 ((2004) 4 SCC 158) and Mangat Ram v. State of Haryana ((2008) 7 SCC 96). 3. As pointed out by the learned counsel, Section 354(1)(b) of the Code requires the appellate court to raise point/points for determination, decide the point/points and to record the reason for such decision. It is in consonance with the said provision that the Hon’ble Supreme Court in the decisions referred supra reiterated the necessity to raise point/points for consideration, arrive at decisions on that points and to record the reasons for such decisions. In State of Punjab v. Bhag Singh referred supra, it was observed that the judgment should at least be indicative of application of mind to the points raised in the appeal. Going by the judgment of the learned Sessions Judge in the case on hand it is seen that it is not a case of dismissal of the appeal for absence of the revision petitioner/appellant, instead, the judgment is indicative of the fact that the learned Sessions Judge had heard the Public Prosecutor necessarily on the points raised by the revision petitioner in the appeal memorandum, perused the lower court judgment and records and came to the conclusion that there was no irregularity in the conviction and sentence passed by the lower court. It is on that finding that the appeal was dismissed. Though not in so many words, the judgment is indicative of the application of mind on the points raised in the appeal. Though not a detailed reasoning is given in the judgment, the learned Sessions Judge has also concluded that there is nothing to interfere with the conviction and sentence imposed on the revision petitioner/appellant. I am not inclined to accept the contention raised by the revision petitioner that the appellate judgment is bad in law. I proceed to Crl.R.P.No.25/2001 3 consider whether the conviction and sentence imposed on the revision petitioner is legal and proper. I also bear in mind that the revisional court can also exercise the powers of the appellate court in considering the illegality and irregularity and correctness of the judgment of the trial court. 4. So far as the charge against the revision petitioner is concerned, the offence said to have been detected by PW2, the Preventive Officer. He claimed that while he, along with other officials were on patrol duty along the place of residence of the revision petitioner, the latter was found coming against them carrying a plastic can. She was intercepted and the plastic can on examination was found to contain about 2 ½ litres of illicit arrack. PW2, prepared Ext.P1, mahazar and seized the controband. After collecting sample of 150 ml from it, the material objects were properly packed, sealed and labelled at the spot. Revision petitioner was arrested at the spot. The witnesses identified MO1, the plastic can in which the revision petitioner was allegedly carrying the controband. PW1 is an attestor in Ext.P1 and supported the prosecution. PW1 stated that he saw the Excise Officer seizing the controband from the revision petitioner. He identified MO1. PW3 preferred the complaint after investigation. Ext.P3 is the report of the chemical examination which states that the sample sent for analysis contained ethyle alcohol. The evidence of PWs 1 and 2 is supported by Ext.P1 that on the relevant day and time revision petitioner was found in possession of illicit arrack. She has not explained its possession. Therefore, applying the presumption under Section 64 of the Abkari Act also, and in the light of the evidence of PWs 1 and 2 supported by Ext.P1 Crl.R.P.No.25/2001 4 which I find no reason to discard the conviction of the revision petitioner under Section 58 of the Abkari Act is legal and proper and requires no interference. 5. It is then argued by the learned counsel that the sentence awarded is excessive. Counsel submitted that the revision petitioner is not involved in any other case and that as on the date of the incident, offence under Section 58 of the Abkari Act was punishable with fine which shall not be less than Rs.15,000/- and with imprisonment for a term which may extent to one year. The submission of the learned counsel is that imprisonment was not mandatory. 6. The argument that imprisonment was not mandatory cannot stand in the light of the provision contained under Section 58 of the Abkari Act. The period of such imprisonment may extent upto to one year, depending the facts and circumstances of each case. The revision petitioner is a lady now aged about 50 years, not shown to be involved in any other case and though the offence was punishable with imprisonment upto one year, the learned Magistrate also thought it sufficient to impose only imprisonment for three months. In the facts and circumstances stated above and considering the fact that at this distant point of time, it is not absolutely necessary to send the revision petitioner behind the bars for such period as fixed by the leaned Magistrate and as confirmed by the learned Sessions Judge, I am satisfied that simple imprisonment till the rising of the court and fine as imposed by the court below is sufficient to meet the ends of justice. Crl.R.P.No.25/2001 5 Resultantly, this Revision Petition is allowed in part in the following lines:- (1) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. (2) The sentence of fine is confirmed. (3) The revision petitioner shall surrender in the trial court on 27.11.2008 to receive the sentence. Bail bond is cancelled. Crl.M.P.No. 96 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.25/2001 6 Thomas P.Joseph, J. Crl.R.P.No.25 of 2001 ORDER 23rd September, 2008