IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 1407 of 2001() ------------------------------ CRA.110/1999 of ADDL.SESSIONS COURT, N.PARAVUR CC.176/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S):APPELLANTS/ACCUSED:- --------------------- 1. MANI, S/O.CHATHAN, PAINADATHU HOUSE, MALAYATTOOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK. 2. JOSE, S/O. ANOTNY, MUTHEDAN HOUSE, MALAYATTOOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL..M.P. No. 6779/2001 in Crl.R.P. No.1496/2001 Dismissed 30-10-2009 Sd/-P.Q. Barkath Ali, Jude. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1407 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of October, 2009 O R D E R Revision petitioners are accused 1 and 2 in C.C.No.176 of 1995 of the Judicial Magistrate of the First Class, Perumbavoor and the appellants in Crl.A.No.110 of 1999 of the Addl. Sessions Court, N. Paravur. They were convicted under section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months each, which is confirmed in appeal. The accused persons have come up in revision challenging their conviction and sentence. 2. The case of the prosecution, as shaped in evidence, before the trial court is that PW2 Preventive Officer and PW3 Guard attached to the Excise Circle Inspector's Office, Aluva on getting information about the illicit distilling of arrack on October 15, 1994 at about 11 p.m. proceeded to the eucalyptus plantation near Kurisumudy, Malayattoor they found the accused persons engaged in distilling illicit arrack and that thereby committed an offence punishable under section 55(a) of the Abkari Act. They were arrested on the spot and MO1 series were taken into custody. 3. The accused persons on appearance before the trial court pleaded Crl.R.P. No.1407/01 2 not guilty to the charge under section 55(a) of the Abkari Act. PWs.1 to 4 were examined and Exts.P1 to P3 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused persons denied the entire incident. No defence evidence was adduced. The trial court on an appreciation of the evidence found the revision petitioners guilty for the offence punishable under section 55(a) of the Abkari Act and convicted them thereunder and sentenced them as aforesaid. On appeal, the appellate court confirmed their conviction and sentence. The accused persons have come up in revision. 4. The following points arise for:- 1) Whether the conviction of the revision petitioners by the trial court under section 55(a) of the Abkari Act, which was confirmed by the lower appellate court in appeal, can be sustained? 2) Whether the sentence imposed against the revision petitioners is excessive or unduly harsh? 5. PWs.1 to 4 were examined and Exts.P1 to P3 were marked on the side of the prosecution. PW1 is the attestor to seizure mahazar Ext.P1, PWs.2 and 3 are the Preventive Officer and Guard who detected the offence. They given consistent version regarding the seizure. Nothing was brought out in cross-examination to discredit their evidence. I have gone through Crl.R.P. No.1407/01 3 their evidence, a certified copy of which is made available by the learned counsel for the revision petitioner. I find no serious discrepancies in their evidence. In my view the trial court as well as the lower appellate court is justified in believing the evidence of PWs.1 to 3 and coming to the conclusion that the accused persons were found engaged in distilling illicit arrack as alleged by the prosecution. That being so, the conviction of the revision petitioner rendered by the trial court, which was confirmed in appeal has to be upheld. 6. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months each, which was confirmed in appeal by the lower appellate court. Taking into consideration the fact that no previous conviction proved against the accused and that Investigating Officer did not mention in Ext.P1 the quantity of wash seized from the revision petitioners/accused persons and that the incident occurred during 1994, I feel that a lenient view can be taken. Hence, I am of the view the sentence of imprisonment till the rising of court and and to pay fine of Rs.5,000/- each would meet the ends of justice. 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioners under section 55(a) of the Abkari Act is confirmed and they are sentenced to undergo imprisonment till the rising Crl.R.P. No.1407/01 4 of court and to pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for three months each. Their bail bonds are cancelled. They shall surrender before the trial court on or before 30-11-2009 to receive the sentence. Two month’s time is granted for payment of the fine. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. No.1407/01 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1407 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 30th day of October, 2009