IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH OCTOBER, 2009 / 6TH KARTHIKA, 1931 Crl.Rev.Pet.No. 1519 of 2001 [CRA.85/1999 of SESSIONS COURT, KOZHIKODE AND CC.316/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY] .................... REVN. PETITIONER/ACCUSED: ------------------------------------------- VELAYUDHAN, S/O.K.KRISHNAN NAIR, THAZHIKODE AMSOM, KACHERY DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.P.GOPINATH RESPONDENT/COMPLAINANT/STATE: ------------------------------------------------------ STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON 28.10.2009 PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1519 of 2001 --------------------------------------------- Dated this the 28th day of October, 2009 O R D E R By judgment dated 4.2.1999 in C.C.No.316/96 of the Judicial First Class Magistrate Court-I, Thamarassery, the revision petitioner, who is the sole accused in the above case, was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.15,000/-. He was further directed to undergo simple imprisonment for three more months in his default of paying the fine amount. Aggrieved by the above judgment, though the accused had preferred Crl.A.No.85 of 1999, the Sessions Court, by its judgment dated 6.8.2001, confirmed the conviction and sentence and accordingly, dismissed the above appeal. Thus, the accused preferred this Crl.Revision Petition challenging the findings of the courts below and also the conviction and sentence. CRRP NO. 1519 OF 2001 :-2-: 2. The allegation against the revision petitioner/accused is that on 25.10.1995, at about 5 p.m., he was found in possession of 5 litres of illicit arrack in a plastic can at the Mukkom-Chennamangalloor road in Katcheri desom, Thazhekode amsom in Kozhikode Taluk. In order to substantiate the allegation, the prosecution has examined Pws.1 to 6 and produced Exts.P1 to P6. MO1 can was identified as material object. No evidence was adduced by the defence. 3. I have heard learned counsel for the revision petitioner Sri.P.S.Sreedharan Pillai and also the learned Public Prosecutor. 4. PW1, who was working as Preventive Officer, is the official who detected the crime and he was accompanied by PW3, Excise Guard. Both of them are attached to Excise Enforcement Anti Narcotic Special Squad, Kozhikode headed by PW6. When they were examined, they have categorically deposed before the court in terms of the CRRP NO. 1519 OF 2001 :-3-: prosecution case. Ext.P1 seizure mahazar and Ext.P2 bail bond were marked through PW1. Two independent witnesses, viz., Pws.2 and 4 turned hostile to the prosecution. After the seizure and arrest of the accused, PW1 produced materials and documents before their immediate superior PW6, who is the Circle Inspector, who in turn prepared Ext.P3 occurrence report and forwarded the same to PW5 and he produced the same before the court. Through PW5, Ext.P4 the requisition for sending the sample for chemical analysis, Ext.P3 occurrence report and Ext.P5 Chemical Analysis Report were marked. Ext.P5 Chemical Analysis Report shows that the sample contained 31.15 by volume of ethyl alcohol. The above evidence of prosecution was accepted by the trial court as well as the lower appellate court on the basis of which the accused was convicted and the sentence was imposed. 5. Learned counsel for the petitioner submitted that there is inordinate delay in reaching the contraband article CRRP NO. 1519 OF 2001 :-4-: and documents before the court below. It is pointed out that though the seizure was effected on 25.10.2005 at about 5 p.m., the same have reached in the court only on 30.10.1995. It is also the argument of the learned counsel that even if the versions of Pws.1,3 and 6 are admitted as true that the contraband article and the documents reached before PW5 on 27.10.1995, still there is delay of three days and the delay was not properly explained and therefore, the prosecution case is not free of doubt. Another point argued is that there is contradiction in the oral depositions of Pws.1 and 3 and therefore, their evidence cannot be relied on for convicting the accused, especially on the background that there is no independent evidence to corroborate the version of the official witnesses. It is pointed out that Pws.2 and 4, who were cited as independent witnesses, have turned hostile, and therefore, absolutely, there is no evidence to lend assurance of the correctness of the version given by the official witnesses. Therefore, it is pleaded that the revision CRRP NO. 1519 OF 2001 :-5-: petitioner/accused is entitled to a clean acquittal. 6. I am unable to accept the above argument in the light of the facts and circumstances, especially the unassailable evidence of the official witnesses. There is no rule that the evidence of official witnesses can be accepted only if the same are corroborated from independent sources. In the present case, in order to disbelieve the evidence of Pws.1 and 3, what pointed out by the learned counsel is that PW1 stated that the accused got dismayed on seeing the excise party and tried to escape from the spot whereas PW3 stated that the accused did not try to escape from the spot. The above contradiction has no consequence at all and the same cannot be taken into account for discrediting the versions of Pws.1 and 3. In substance, both Pws.1 and 3 deposed that they have seen the accused in possession of the contraband article and he was arrested from the spot with the contraband article. 7. It is also relevant to note that though Pws.2 and 4 CRRP NO. 1519 OF 2001 :-6-: turned hostile, regarding the seizure, there is concrete evidence of Pws. 1 and 3, which are legally acceptable and acted upon. During their cross-examination, nothing was brought to discredit their version except the above mentioned slight conflicting version, regarding the demeanour of the accused. In this juncture, it is also relevant to note that in the chief examination, both Pws.2 and 4 deposed in terms of the prosecution case and they turned hostile at the time of cross-examination. As rightly observed by the lower appellate court, Pws.2 and 4 are educated persons and therefore, it cannot be presumed that they put their signature in the mahazar without understanding its contents. As pointed out earlier, when the evidence of Pws.1 and 3 are legally acceptable and beyond any doubt, the hostile attitude of Pws.2 and 4 will not help the accused to disbelieve the prosecution case. 8. Another point argued by the learned counsel is about the delay. I have carefully considered the above CRRP NO. 1519 OF 2001 :-7-: contention and perused the records and I am of the view that absolutely, there is no delay to throw away the prosecution case. Admittedly, the crime was detected at 5 p.m. on 25.10.1995 in the public road viz., Mukkam- Chendamangalloor road, near a shop. Pws.1 and 3 categorically stated that on the basis of the seizure itself, the contraband article and the documents were produced before their immediate superior viz., PW6. So after the seizure, the contraband article was under the safe custody of PW6. PW6 deposed that he had produced the article before PW5 on 27.10.1995. PW5 deposed before the court that he sent Ext.P3 on 27.10.1995 itself and produced the materials before the court on 30.10.1995. No question was put to PW.5 or PW6 so as to bring out any prejudice caused to the accused because of the alleged delay. It was incumbent upon the defence to put question to the official concerned including the investigating officer regarding the alleged delay and to get their explanation about the same. CRRP NO. 1519 OF 2001 :-8-: In the present case, no such attempt was made. Besides the above, it is also relevant to note that in Ext.P5 chemical analysis report, it is stated that the sample bottle was intact. The defence has no case that the sample was tampered and no cross-examination was conducted in that direction. Therefore, even if it is considered as there is delay, no prejudice is caused to the defence and nothing brought on record to substantiate any prejudice against the defence. Therefore, the arguments based upon the alleged delay also fail. 9. Learned counsel lastly submitted that some leniency may be shown to the accused with respect to the sentence. It is pointed out that now the revision petitioner/accused is at the age of about 60. I have carefully considered the above submission. On examination of the available materials on record in the light of the above submission, it is seen that at the time of the arrest of the revision petitioner, he was at the age of 46. Thereafter, 14 CRRP NO. 1519 OF 2001 :-9-: years are over and naturally, he is now at the age of 60. There was no prohibition of arrack at the time of the alleged incident and the allegation is that he was found in possession of 5 litres of illicit arrack. The prosecution has no case that he was previously involved or convicted in similar type of offences. The petitioner has preferred the Criminal Revision Petition before this Court during the year 2001 and the same was pending for the last eight years. In the above factual premises, I am of the view that a lenient view can be taken with respect to the sentence. Accordingly, the six months imprisonment is reduced till the rising of the court and the order of sentence of fine is maintained as such. In the result, the conviction of the revision petitioner under Section 58 of the Abkari Act is confirmed and the sentence is modified and reduced till the rising of the court. The petitioner is directed to appear before the court which convicted him on 28.11.2009, if no sitting on that date, on CRRP NO. 1519 OF 2001 :-10-: the next sitting date of that court, to receive the sentence. In case of failure on the part of the petitioner in appearing before the trial court to receive the sentence, the court is free to take coercive steps for executing the punishment. The bail bond, if any, executed by the revision petitioner is cancelled. This Criminal Revision Petition is disposed of as above. V.K.Mohanan, Judge MBS/ CRRP NO. 1519 OF 2001 :-11-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. 1519 OF 2001 -------------------------------------------- O R D E R CRRP NO. 1519 OF 2001 :-12-: DATED: 28-10-2009