IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3040 of 2008() ------------------------------ CRA.536/2007 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE SC.588/2006 of ASSISTANT SESSIONS COURT, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MURALEEDHARAN, S/O.KANNAN NAIR, THULISSERY MEETHAL, KOKKALLUR, KOYILANDY TALUK. BY ADV. SRI.S.M.PRASANTH RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3040 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 8(1) and (2) of Abkari Act. Prosecution case was that on 13.2.2004, at about 5 pm, he was found possessing 5 litres of illicit arrack at Kokkallur and seeing PW1, the Excise Preventive Officer, petitioner attempted to flee away and was stopped. When examined, he was found to possess illicit arrack. It was seized and case was registered. Learned Magistrate committed the case to Sessions Court, Kozhikode which was made over to Assistant Sessions Court, Koyilandy. Petitioner was tried in S.C.588 of 2006. Charge for the offence under Section 8(1) and (2) were read over to the accused. He pleaded not guilty. Prosecution examined eight witnesses and marked seven exhibits and identified MO1 Can, which was seized under Ext.P2 mahazar. Though petitioner was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. 2. Learned Assistant Sessions Judge, on the evidence found him guilty. He was convicted and sentenced to simple imprisonment for one year and a fine of Rs.1,00,000/- and in default, simple imprisonment for three months. Petitioner was also granted set off for the period he was in custody during the investigation and trial. CRRP 3040/2008 2 Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.536 of 2007. Learned Additional Sessions Judge on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. The argument of learned counsel is that courts below were not justified in accepting the evidence of Pws 1 to 3 and convicting petitioner based on the evidence and therefore conviction is not sustainable. Learned counsel also argued that in any case, considering the quantity of arrack seized from the petitioner, sentence warrants modification. On the submission of the learned counsel for leniency in the sentence, learned Public Prosecutor was directed to verify whether petitioner is involved in any other offence. Learned Public Prosecutor, on instructions, submitted that petitioner is involved in two other Abkari cases, viz, Crime No.38 of 2005 and Crime No.27 of 2008. 5. Learned counsel argued that courts below were not justified in finding that petitioner was possessing illicit arrack in MO1 Can. Evidence of PW1, the Preventive Officer, which is corroborated by the evidence of PW2 and PW3 establish that on 13.2.2004 at about 5 pm, CRRP 3040/2008 3 while on patrol duty, along with Pws 2 and 3, PW1 found petitioner and when petitioner tried to escape from the scene, he was stopped and on examination, found that he was possessing MO1 Can containing illlicit arrack. Evidence of Pws 1 to 3 is corroborated by Ext.P2 mahazar, which was a contemporaneous record prepared at the time of seizure. Evidence also establish that sample was prepared and it was produced before court and was forwarded for chemical analysis Ext.P7 report establish that on examination the sample contained ethyl alcohol. Therefore conviction of petitioner for the offence under Section 8(1) and (2) of Abkari Act is perfectly legal. 6. Then the only question is with regard to sentence. Sentence provided for the offence is a minimum fine and on substantive sentence minimum is not provided. Though learned counsel argued that considering the quantity of liquor, sentence is to be reduced, when petitioner is involved in similar Abkari offences, even subsequent to the offence committed in this case, interest of justice does not warrant any interference in the sentence also. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-