IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 2885 of 2008() ------------------------------ CRA.26/2006 of ADDL. SESSIONS COURT (FAST TRACK COURT NO.II- ADHOC), THRISSUR SC.571/2004 of ADDL. ASSISTANT SESSIONS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED --------------------------------------- SUDHEESH, S/O.MALATHI AMMA, VADASSERY VEEDU, MOOTHRATHIKKARA DESOM, PARAPPUKKARA VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT(S): RESPONDENT/COMPLAINANT -------------------------------------- THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2885 of 2008 -------------------------------------- Dated this the 14th day of July, 2009. ORDER Heard counsel for petitioner and Public Prosecutor who took notice for respondent. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track Court No.II (Adhoc),Thrissur confirming conviction and sentence of petitioner for offence punishable under Section 8(2) of the Abkari Act (for short, “the Act”). Case is that on 13.7.2002 at about 6 p.m. petitioner was found carrying about two litres of illicit arrack in a plastic can along canal bund on the side of Jayabharath Tile Factory. Learned Additional Assistant Sessions Judge, Irinjalakuda tried petitioner for offence under Section 8(2) of the Act in S.C.No.571 of 2004, convicted and sentenced him to undergo simple imprisonment for one year and payment of fine of Rupees one lakh with default sentence of simple imprisonment for six months. It is contended by learned counsel that conviction and sentence of petitioner are not legal or proper. 3. PW1, Preventive Officer is said to have detected the offence while on patrol duty on the relevant day, time and place. Himself and PW5, guard with him have given evidence that petitioner was seen carrying the contraband in a plastic can along canal bund near Jayabharath Tile Factory. Petitioner was Crl.R.P.No.2885/2008 2 arrested at the spot. PW1 drew sample from the contraband and the same as well as the rest in the plastic can were packed, labelled and sealed and taken into custody as per Ext.P1, seizure mahazar. Ext.P2 is the arrest memo prepared by PW1. PWs 1 and 5 identified the plastic can which the petitioner was allegedly carrying. PW2 is an attestor in Exts.P1 and P2. He admitted signing Exts.P1 and P2 but claimed that he had not seen the alleged incident. It has come in evidence that PW2 is a native of the place to which the petitioner also belonged and further, that on the day PW2 was giving evidence he had been to the court along with the petitioner. It is seen from cross examination of PW1 that challenge was regarding his statement as to the direction in which canal bund is situated. He stated that it is towards eastern side of the Tile Factory while Exts.P6 and P7, scene mahazar and site plan prepared by PW4 would show that canal bund is on the western side of the Tile Factory. That however is no ground to disbelieve the evidence of PW1. Evidence of PWs 1 and 2 get corroboration from Exts.P1 and P2, contemporaneous records prepared by PW1. PW3 is the Excise Inspector who registered the case. He produced the material objects in court on 14.7.2002 as per Ext.P4. Ext.P8 is the report of chemical examination which would show that the sample contained 32.22% by volume of ethyl alcohol. It is seen from the records that material Crl.R.P.No.2885/2008 3 object and records were produced in the court on 14.7.2002 itself. There is no challenge to the identity of the material object. In these circumstances I do not find reason to interfere with the conviction of petitioner. 4. It is submitted by learned counsel that petitioner was in custody from 14.7.2002 to 17.9.2002. It is not shown that petitioner is involved in any other case. Considering these circumstances I am satisfied that the substantive sentence could be modified and confined to the period of detention already undergone. Default sentence for non-payment of fine is modified as simple imprisonment for one month. Resultantly, this revision is allowed in part to the following extent: i. Sentence of imprisonment awarded to the petitioner is modified and confined to the period of detention already undergone by him. ii. While retaining the sentence of fine the default sentence for non-payment is modified as simple imprisonment for one month. iii. Petitioner is granted three months' time from today to deposit fine in the trial court. Crl.R.P.No.2885/2008 4 iv. Petitioner shall appear in the trial court on 16.10.2009 to receive the default sentence in case fine is not paid within the said period of three months. Crl.M.A.No.8766 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks