IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 Crl.Rev.Pet.No. 1268 of 2001() ---------------------------------------- CRA.315/1998 of SESSIONS COURT, KOZHIKOE CC.294/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ JANAKI, W/O.RARICHAN, THEKKEDATH MEETHAL, PADINHATTUMURI AMSOM, KIHAKKUMMURI DESOM KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------------- 1. THE EXCISE INSPECTOR, CHELLANNUR EXCISE RANGE, KOZHIKODE. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1268 OF 2001 -------------------------------- Dated this the 25th day of July 2011 ORDER Revision is by the accused in C.C No.294/1996 on the file of the Judicial First Class Magistrate Court, Kunnamangalam. She was prosecuted for the offence under Section 58 of the Kerala Abkari Act, hereinafter referred to as the 'Act' on a complaint filed by the Excise Inspector, Chelannur Excise Range. Negativing her plea of not guilty, on the materials placed by the prosecution, the learned Magistrate found her guilty and convicted her for the offence, sentencing her to undergo simple imprisonment for two months and to pay a fine of Rs.15,000/- with default term of imprisonment for one month more. Appeal preferred by her impeaching her conviction and sentence was turned down by the learned Sessions Judge, but with a modification of the sentence reducing the substantive term of imprisonment to one month, retaining the default term fixed without any modification. Feeling aggrieved, she has preferred this revision. 2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. Conviction of the accused is solely based on the evidence of the excise officials, and the two independent witnesses examined as PW4 and PW5 to prove the seizure of the Crl.R.P No.1268 OF 2001 - 2 - contraband from the accused failed to support its case is canvassed by the counsel to contend that it is unsafe to hold the accused guilty for the offence awarded on the evidence of the department officials alone. The delay in having analysis over the sample alleged to have collected from the contraband seized is also projected by the learned counsel as highly detrimental and fatal in accepting the prosecution case. Lastly, pointing out that the accused is a lady and that there is no previous conviction against her for any offence under the Abkari Act or any other Act, the learned counsel pleads for modification of the sentence in case the conviction is found to be unassailable. 3. I have gone through the judgments rendered by the learned Magistrate and also the learned Sessions Judge. The evidence of PW1 and PW2 who were involved in the detection of the offence and also seizure of the contraband from the accused, two liters of arrack carried by her in a cannas having a capacity of 2.5 liters at the time and place alleged was found credible and trustworthy to the learned Magistrate. True, the evidence of those two excise officials was not corroborated from an independent source. Seizure, which was sought to be proved through independent evidence by examining PW4 and PW5 attesters to the mahazar, under which the contraband was seized, was also not successful as the aforesaid witnesses, while Crl.R.P No.1268 OF 2001 - 3 - admitting their signature in the mahazar disowned the prosecution case that it was seized from the accused at the time and place alleged. The learned Magistrate, who recorded the testimony of PW4 and PW5 with that of PW1 and PW2 the excise officials, after meticulous analysis of their evidence, found that the attesting witnesses had turned hostile to the prosecution does not effect the core or substratum of its case. The evidence of the excise officials deserve to be appreciated as that of any other witnesses and no insistence for corroboration for acceptance of such evidence is warranted by law. Corroboration is a rule of prudence and not of evidence, and it is for the court to decide whether such corroboration is required in the given facts of the case. Nothing has been shown that the evidence of PW1 and PW2, excise officials, as regards the seizure of the contraband from the accused, suffers from any infirmity whatsoever. The learned Sessions Judge, after reappraising the evidence, has concurred with the conclusion formed as regards the seizure of the contraband from the accused, relying on the evidence of PW1 and PW2, the excise officials involved in such seizure. In view of the limited scope of exercise of revisional jurisdiction, reappreciation of the evidence cannot be resorted to so long as the finding on fact entered by the inferior courts is not shown Crl.R.P No.1268 OF 2001 - 4 - to be perverse or that it could not have been legitimately formed on the materials on record. When that be so, this court in exercise of revisional jurisdiction cannot interfere with the finding entered by the inferior courts by scrutiny of materials, unless a case thereof is made out. That also being taken into account, I find that the finding on facts entered by the courts below concurrently, as against the accused is unassailable, which is shown to be fully supported by the legal evidence tendered in the case. 4. Going through Ext.P4 analysis report with Ext.P3 requisition memo filed, on production of the contraband seized with the sample bottle before the court, it cannot be stated that there was inordinate delay on the part of the investigating agency in taking steps for analysis of the sample. Ext.P3 would disclose that the contraband seized and the sample collected thereof were produced within two days before the court with the requisition memo for forwarding the sample to the laboratory for analysis. 5. True, there was some delay in forwarding of the sample to the laboratory as could be seen from the date of forwarding of the sample as recorded in Ext.P4 certificate of analysis. That, of course, will not come to the assistance and aid of the accused unless it is shown that after the sample was produced before the court, the Crl.R.P No.1268 OF 2001 - 5 - delay in sending it for analysis has caused her prejudice in any manner. Such a cause has not been canvassed for in the case and there is nothing on record to show that any prejudice was caused to the accused by the delay in sending the sample from court for analysis. That being the position, I find no merit in the submissions of the counsel that the delay in the analysis of the sample was detrimental to the prosecution case. 6. Conviction of the accused, it is seen, is fully supported by legal evidence, and the challenges raised to impeach such conviction are meritless. So far as the sentence imposed against the accused, the learned Sessions Judge has shown maximum leniency in limiting the substantive term of imprisonment to one month while retaining the fine amount of Rs.15,000/- the minimum mandated by the statute. Punishment for the offence with which the accused was found guilty and convicted provides for imprisonment extending a term of one year. The trial Magistrate has sentenced the accused to undergo substantive term of imprisonment for two months, which has been reduced in appeal by the learned Sessions Judge to one month. So much so, further modification of the substantive term of imprisonment normally cannot be resorted to. However, taking note of the submissions made by the learned counsel for the Crl.R.P No.1268 OF 2001 - 6 - petitioner/accused that the accused is a lady and more than 15 years have passed after the commencement of prosecution against her in the present case, and further that there is no previous conviction against her, which is not disputed by the prosecutor, I find, the substantive term of imprisonment can be reduced to two weeks retaining the fine amount with default term. Sentence imposed on the accused is modified limiting the substantive term of simple imprisonment to 15 days and payment of fine of Rs.15,000/- with default term of imprisonment for one month. Revision is disposed as indicated above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge