IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 131 of 2005() ----------------------------- STC.702/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR CRA.103/1999 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JASEENTHA D/O. PHILOMINA, AGED 53 YEARS, RESIDING AT MADAYI, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENT(S): RESPONDENTS/STATE -------------------------------- 1. EXCISE INSPECTOR, PAPPINISSERY RANGE, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A .NO.1033/05 & 16078/05 IN CRRP.131/05 DISMISSED 4/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.131 OF 2005 --------------------------------------------- Dated 4th June 2010 O R D E R Petitioner was convicted and sentenced to imprisonment till rising of court and fine of Rs.15,000/- for the offence under Section 58 of Abkari Act by Judicial First Class Magistrate, Payyannur in S.T.702/1996. Prosecution case is that on 16/10/1995 at about 5.30 p.m, PW1 Preventive Officer of Pappinisseri Excise Range along with PW2 Excise Guard were proceeding along Kundayi Ittammal road on patrol duty and petitioner was found walking carrying MO.1 plastic can containing 2½ liters of illicit arrack it was seized, and petitioner was arrested. The sample was prepared and MO.1 and the CRRP 131/05 2 sample were sealed and case was registered for the offence under Section 58 of Abkari Act. Sample was produced before the court along with Mo.1 and sent for chemical analysis and obtained Ext.P4 result of chemical analysis which establishes that it is illicit arrack. Petitioner pleaded not guilty. Prosecution examined, apart from Pws.1 and 2, Pws.3 and 4 the witnesses to Ext.P1 seizure mahazar and PW4 inspector of Excise Range, Pappinisseri who registered the case under Ext.P2. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that petitioner was possessing MO.1 can containing illicit arrack on 16/10/1995 and she thereby committed the offence under Section 58 of Abkari Act and she was sentenced accordingly. Petitioner challenged the conviction and CRRP 131/05 3 sentence before Sessions court, Thalassery in Crl.A.103/1999. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and in the light of the evidence of Pws.3 and 5, who deposed that they did not witness the seizure, evidence of Pws.1 and 2 the Excise Officials should not have been accepted and hence the conviction based on their evidence is unsustainable. Learned counsel then argued that learned Magistrate could not have awarded a sentence of above CRRP 131/05 4 Rs.5,000/-, in view of Section 29(2) of Code of Criminal Procedure and therefore, the sentence is illegal. Learned counsel would also argue that sentence itself is illegal and in any case, petitioner being a physically handicapped woman petitioner should have been released on Probation. 4. Apart from the evidence of Pws.1 and 2, courts below relied on Ext.P1 seizure mahazar which was prepared contemporaneously. True, PWs.3 and 5, witnesses to the seizure mahazar turned hostile to prosecution. But that does not mean that evidence of Pws.1 and 2 is to be disbelieved. Though learned counsel appearing for the petitioner vehemently argued that in view of the hostility shown by Pws.3 and 5, courts below should not have accepted the evidence of Pws.1 and 2 who are Excise CRRP 131/05 5 Officials it is a common feature in abkari cases that witnesses to the seizure mahazar remains hostile to the prosecution because of various reasons. But that by itself will not affect the veracity or validity of the evidence of the Excise Officials. There is no law or rule of evidence that the evidence tendered by an eExcise Officials is either to be disbelieved or is to be viewed with suspicion. Their evidence is to be appreciated like the evidence of any other witness. If their evidence is trustworthy, reliable and nothing was pointed out to disbelieve, there is no reason to discard their evidence. That exactly is the case herein. Evidence of PW1 is fully corroborated by the evidence of PW2. Ext.P1 the contemporaneous record further strengthens their evidence. On going through CRRP 131/05 6 the evidence, I find no reason to interfere with the finding of the courts below that petitioner was found possessing MO.1 can containing illicit liquor. Ext.P4 report of chemical analysis establishes that ethyl alcohol was detected in the sample. Evidence of Pws.1 and 2 establishes that sample so examined at the laboratory is the sample which was collected from MO.1 can in the presence of the petitioner, at the time of seizure and produced in court. In such circumstances, conviction of the petitioner for the offence under Section 58 of Abkari Act is perfectly legal and warrants no interference. 5. Learned counsel then submitted that sentence provided for an offence under Section 58 on the date of commission of the offence is only fine of Rs.3,000/- or imprisonment for six CRRP 131/05 7 months or both and therefore, the sentence awarded is illegal. Though sentence originally provided under Section 58 was fine of Rs.3,000/- or imprisonment upto six months or both, by Abkari amendment Act 1995 (Act 12 of 1995) which came into force on publication in the Kerala Gazette dated 5/8/1995, Section 58 was amended providing for a punishment of “fine which shall not be less than rupees fifteen thousand and imprisonment for a term which may extend to one year”. Therefore, from 5/8/1995, punishment provided for the offence under Section 58 is fine which shall not be less than rupees fifteen thousand and imprisonment for a term which may extend to one year. Even this punishment was subsequently amended by the Act 16 of 1996 w.e.f 3/6/1997 whereunder minimum fine was enhanced to rupees CRRP 131/05 8 one lakh and the imprisonment upto ten years. But that amendment came into force only on 3/6/1997. Offence was committed on 16/10/1995. Punishment provided then was fine which shall not be less than rupees fifteen thousand and imprisonment which may extend to one year. Therefore, sentence of imprisonment till rising of court and fine of rupees fifteen thousand is perfectly legal. 6. Second limb of the argument of the learned counsel is that in view of Section 2 of Code of Criminal Procedure, learned Magistrate could not have awarded a fine of Rs.15,000/- on the date when she was convicted and sentenced. Petitioner was convicted and sentenced by the learned Magistrate on 29/3/1999. That argument is also not valid in view of the Abkari Amendment Act 1996 (Act 4 of CRRP 131/05 9 1996). By Section 13 of the Amendment Act (Act 4 of 1996), new Section 55 A was inserted providing that notwithstanding anything contained in Sub Section 2 of Section 29 of Code of Criminal Procedure 1973, it shall be lawful for a Magistrate of the First Class to pass sentence mentioned in Sections 55, 58 and 64 A for any offence referred to in those sections in exercise of the powers under Sub Section 2 of Section 29 of Code of Criminal Procedure. By Sub Section 2 of Section 1 of Amended Act 4 of 1996, Sections8, 13 and 14 of Amendment Act shall be deemed to have come into force on 16/2/1996. Therefore, w.e.f. 16/2/1996 irrespective of Section 29(2) of Code of Criminal Procedure, Judicial First Class Magistrate can award a sentence, in excess of the fine of rupees five thousand, provided CRRP 131/05 10 under Section 29(2) of Code of Criminal Procedure including the sentence provided under Section 58 of Abkari Act. Therefore, sentence awarding a fine of Rs.15,000/- is also perfectly legal. There is no merit in the revision. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.