IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 654 of 2002() ----------------------------- CC.351/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM CRA.180/1999 of ADDL.SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PADMANABHAN NAIR, S/O.NARAYANAN NAIR, MELU HOUSE, PERUVAYAL AMSOM, POOVATUPARAMBA DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHI KRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No. 4005/2002 in Crl.R.P. No. 654/2002 Dismissed 5-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 654 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of November, 2009. O R D E R Revision petitioner is the accused in C.C.No. 351 of 1996 of the Judicial Magistrate of First Class, Kunnamangalam and appellant in Crl.Appeal No. 180 of 1999 of the Addl. Sessions Court, Kozhikode. He was convicted under section 58 of the Abkari Act and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.15,000/-, in default, to undergo simple imprisonment for one month by the learned Magistrate, which was confirmed in appeal. Now the accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the lower court was that on July 24, 1995 at about 5.15 P.M. the accused was found in possession of 1 ½ litres of illicit arrack on the Panchayat road leading from Poovattu Parambu junction to Eranhikkal and that thereby committed the offence punishable under section 58 of the Abkari Act. 3. The accused on appearance before the trial court pleaded not Crl.R.P. 654/02 2 guilty to the charge under section 58 of the Abkari Act. PWs.1 to 5 were examined and Exts.P1 to P5 were marked on the side of the prosecution. MO1 was also produced on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied having committed any offence. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under section 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid, which was confirmed in appeal. The accused has now challenged his conviction and sentence in this revision. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner in Section 58 of the Abkari Act by the trial court which was confirmed in appeal by the lower appellate court can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. Heard the counsel for revision petitioner and the Public Prosecutor. 7. PWs.1 to 5 were examined and Exts.P1 to P5 and MO1 were Crl.R.P. 654/02 3 marked on the side of the prosecution to prove the guilt of the accused before the trial court. PW1 is the Preventive Officer attached to Kozhikode Excise Enforcement and Anti Narcotic Special Squad. PW2 is the then Excise Guard attached to the said office. They testified in terms of the prosecution case. I have gone through their evidence. Nothing was brought out in cross examination to discredit their evidence. PWs.3 and 4 are the attestors to Ext.P1 mahazar. They turned hostile and did not support the prosecution. PW5 is the then Excise Inspector of Kunnamangalam Excise Range who registered the case and prepared occurrence report Ext.P2. Ext.P5 is chemical analysis report. The counsel for revision petitioner argued that the evidence of official witnesses without any corroboration could not be accepted. It is settled law that the evidence of official witnesses, if otherwise found reliable, can be accepted even without any corroboration from independent witnesses. PWs.1 and 2 have no enmity towards the accused. Both the courts below have found their evidence reliable. I find no reason to come to a different conclusion. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified Crl.R.P. 654/02 4 in accepting their evidence and finding that the accused was found in possession of 1 ½ litres of illicit arrack, as alleged by the prosecution. 8. The next question for consideration is whether the conviction under section 58 of the Abkari Act will lie against the accused. The incident occurred on July 24, 1995. At that time the arrack was not banned. By Notification S.R.O. No.89/69 the permissible quantity of arrack that can be possessed by a person during that period was 750 ml. Further it has been held by a learned Judge of this Court in Kelukutty V. State of Kerala (2009 (4) KLT 286) that conviction under section 58 of the Abkari Act attracts against a person only if he was aware of the fact that arrack which has been in his possession is unlawfully imported, transported, manufactured, etc. There is no evidence in this case to prove the above aspect. Therefore, under these circumstances, the petitioner can only be found guilty of violation of sections 10 and 13 of the Abkari Act for having been in possession of arrack in excess of the permissible quantity prescribed under Government Notification S.R.O. 89/69, which is punishable under section 63 of the Abkari Act. That being so, the accused can only be found guilty of violation of sections 10 and 13 of the Abkari Act. Therefore, the conviction of the revision petitioner under section 58 of the Abkari Act by the trial court Crl.R.P. 654/02 5 which is confirmed in appeal is set aside and he is convicted under section 63 of the Abkari Act. 9. As regards the sentence, the maximum sentence that can be imposed under section 63 of the Abkari Act at that time was a fine of Rs.2,000/-. Accused was found to be in possession of only 1 ½ litrs of arrack. Therefore, I feel that a sentence of fine of Rs.2,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 10. In the result, the conviction of the revision petitioner under section 58 is set aside, he is convicted under sections 10 and 13 read with section 63 of the Abkari Act and sentenced to pay a fine of Rs.2,000/- , in default to undergo simple imprisonment for three months. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATHALI, JUDGE mn Crl.R.P. 654/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P. No. 654 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 5th day of November, 2009.