IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 Crl.Rev.Pet.No. 741 of 2006() ----------------------------- CRA.476/2001 of ADDL. DISTRICT AND SESSIONS COURT, FT (ADHOC-II) KOZHIKODE SC.273/2000 of II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 ------------------------------------------- RAJESH.C.K., S/O.KUMARAN, CHANGAROTH KUNNUMMAL HOUSE, KANNADIPOYIL POST, KANTHALAD AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, KAKKUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. R. BINDU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON 26/03/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 741 of 2006 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2009 O R D E R The revision petitioner is the first accused in S.C.No. 273 of 2000 on the file of the Court of II Additional Assistant Sessions Judge, Kozhikode. He was charge sheeted by the respondent under Section 55(a) and 58 of the Kerala Abkari Act and Section 15 of the Abkari Amendment Ordinance 1997. 2. The brief facts of the case is as follows. On 3.12.1998, at about 2.45 a.m., while the Sub Inspector of Police and party were on patrol duty, through the Kumaraswami Raja Road, the petitioner/first accused was found driving an autorikshaw bearing registration No.KL 11/C 4438 from Balusserry to Kozhikode. Eventhough PW1 has given signal to stop the autorikshaw, it was not stopped. After chasing the autorikshaw, it was stopped at Pallithazham. On examination, it was found that the Crl.R.P.No. 741 of 2006 2 autorikshaw carried four cans, containing 35 litres of illicit arrack in each can. The petitioner was the driver of the autorikshaw and the accused No.2 was found sitting inside the autorikshaw. The petitioner/A1 was arrested. The second accused ran away from the scene. After completing the formalities, a case was registered against the accused. 3. Before the trial court, PWs. 1 to 5 were examined and Exts.P1 to P8 and MOs 1 to 4 were marked. On behalf of the defence, Exts.D1 to D3 were marked. The trial court found both the accused guilty of the offence under Section 55(a) of the Act and accordingly convicted and sentenced them to undergo simple imprisonment for one year each and to pay fine amount of Rs. 1 lakh each and in default to undergo S.I. for two months. 4. Aggrieved by the conviction and sentence passed by the trial court, the accused preferred an appeal, Crl.A.No. 476 of 2001, before the Court of Additional Distinct and Sessions Judge, Fast Track (Adhoc-II), Kozhikode. The Sessions Judge, as per judgment dt. 30.9.1005, confirmed the conviction and Crl.R.P.No. 741 of 2006 3 sentence passed by the trial court against the revision petitioner/A1, but acquitted accused No.2, as the identity of the second accused has not been proved by the prosecution. Against that judgment, the first accused filed this Revision Petition. 5. Heard the learned counsel for the revision Petitioner and the learned Public Prosecutor. 6. Normally, the jurisdiction of the High Court in revision has to be exercised only in exceptional cases when there was glaring defect in the procedure or there was manifest error on a point of law, which has consequently resulted in flagrant miscarriage of justice. 7. PW1 is the Sub Inspector of Police, who detected the offence. He swears that while he was on patrol duty near Kumaraswamy Raja road, he gave signal to stop the autorikshaw, which was coming from Balussery to Kozikode side. But the autorikshaw was not stopped. PW1 chased the same and restrained it at a place called Pallithazham. In that autorikshaw he found four cans with a capacity of 35 litres with Crl.R.P.No. 741 of 2006 4 full of illicit arrack. The first accused, who was driving the autorikshaw, was arrested. The second accused, who was travelling in the autorikshaw, ran away from the scene. PW1 took sample from the cans, sealed and labelled and obtained signature of himself and witnesses. PW1 proved Ext.P1 seizure mahazar. Ext.P2 is the F.I.R.. Ext.P3 is the property list. MOs. 1 to 4 are the cans seized from the autorikshaw. PW2, is a Police Constable, who accompanied PW1 on patrol duty. PW2 gave more or less same version with regard to the seizure of the illicit arrack. PW3 is a retired Tahsildar, who swears that he saw the recovery of the material objects from the accused. PW5 is the Asst. Sub Inspector, who investigated the case. PW5 prepared the seizure mahazar and recorded the statements of witnesses. Ext.P5 is the forwarding note sent by him. Ext.P8 is the chemical analysis report showing that ethyl alcohol was detected in the sample sent for chemical analysis. 8. The learned counsel for the revision petition, relying on the decision reported in Sabu v. State of Kerala (2007 (4) Crl.R.P.No. 741 of 2006 5 KLT 169), argued that the Assistant Sub Inspector of Police is not authorised to detect and investigate the offence under the Abkari Act. In the decision reported in Vikraman v. State of Kerala (2007 (1) KLT 1010), it was held that when detection was made by the detecting officer, the mere fact that the Asst. Sub Inspector conducted the later part of the investigation and laid the charge sheet, will not vitiate the trial. In the present case, PW1 is an authorised officer, who detected the crime and further investigation was conducted by the Asst. Sub Inspector. 9. A reading of Section 465 Cr.P.C. makes it clear that an irregularity or even illegality committed in the course of investigation does not vitiate the trial by an otherwise competent court unless miscarriage of justice has been caused thereby. In the present case, the accused has no case that any miscarriage of justice was caused due to the investigation conducted by the Asst. Sub Inspector. Since the testimony of PW1 is corroborated by the testimony of other witnesses and documents, I am of the view that the trial court and the appellate court are fully justified Crl.R.P.No. 741 of 2006 6 in finding that the first accused has committed an offence punishable under Section 55(a) of the Act. The sentence awarded is just and reasonable, on considering the facts and circumstances of the case and gravity of the offence committed. Since the trial court and appellate court have not committed any error of fact or law in convicting and sentencing the first accused under Section 55(a) of the Act, I find no reason to interfere with their concurrent findings. 10. This Revision Petition is without merit and it is hence dismissed. (M.L. JOSEPH FRANCIS) Judge tm