IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 682 of 2004() ----------------------------- CRA.191/2000 of OF ADDL.DISTRICT COURT (ADHOC-II) KOZHIKODE CC.862/1996 of JUDL.MAGISTRATE OF FIRST CLASS, KOYILANDY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- BALAN, AGED 51 YEARS, S/O. KUNHIRAMAN, ILLATH HOUSE, SIVAPURAM, KOYILANDY, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA THROUGH THE EXCISE INSPECTOR, CHELANNUR RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.682 OF 2004 --------------------------------------------- Dated 10th August, 2010 O R D E R Petitioner, the accused in C.C.862/1996 on the file of Judicial First Class Magistrate, Quilandy was convicted and sentenced to simple imprisonment for two months and a fine of Rs.15,000/- and in default simple imprisonment for one month for the offence under Section 58 of Abkari Act. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.191/2000. Learned Additional Sessions Judge on re- appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. CRRP 682/04 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and failed to note that evidence of PW1 does not inspire confidence. It is argued that as per evidence of PW1 signature of the petitioner was obtained on the label and when he was cross examined, it was admitted by PW1 that signature is not there in the label. It is therefore argued that MO.1 produced before the court is not the material object allegedly seized from the petitioner. Learned counsel also argued that when PW2 the independent witness turned hostile to the prosecution and the investigating officer was not examined, it has caused prejudice to the petitioner and therefore, conviction is CRRP 682/04 3 vitiated. Learned counsel also argued that in any case, an offence under Section 58 is not attracted as there is no case for the prosecution that petitioner was possessing the liquor with the knowledge that it is illicit liquor and therefore the conviction is not sustainable. Learned counsel finally submitted that petitioner was aged 60 years and the incident was in 1995 and at this distant point of time petitioner may not be sent to prison. 4. Learned Public Prosecutor submitted that evidence of PW1 was corroborated by Ext.P1 mahazar, accepted by the trial court and the appellate court, establish that petitioner was in possession of two liters of illicit arrack and there is no reason to interfere with the said factual findings. Learned Public Prosecutor also pointed out that petitioner has no case that he was in possession of illicit CRRP 682/04 4 arrack with the bonafide belief that it was lawfully manufactured and when it is proved that it is illicit arrack, the conviction and sentence is perfectly legal. 5. Though PW2 the independent witness turned hostile to the prosecution, learned Magistrate and learned Sessions Judge on appreciation of the evidence of PW1, the detecting officer, corroborated by Ext.P1 seizure mahazar the contemporaneous record, accepted the prosecution case that petitioner was carrying MO.1 can containing two liters of illicit arrack. Relying on Ext.P3 chemical analysis report and evidence of PW1 it was found that petitioner was in possession of illicit arrack. He was convicted for the offence under Section 58 of Abkari Act. Though learned counsel argued that evidence of PW1 should not have been accepted by the courts CRRP 682/04 5 below, on going through the evidence of PW1, I find no reason to interfere with the factual findings. True, in cross examination PW1 deposed that signature of the petitioner is not seen on the label at the time of his examination in court. But it is not for the reason that signature of the petitioner was not obtained. It is for the reason that portion of the label was torn off, as deposed by PW1. Therefore, I cannot accept the submission of the learned counsel that MO.1 is not the can which was seized under Ext.P1 mahazar. 6. Though learned counsel argued that there was no requisition by the investigating officer to forward the sample produced in court to the laboratory for analysis and therefore, Ext.P3 report cannot be accepted in evidence, I cannot agree with the said submission also. PW1 deposed that the CRRP 682/04 6 investigating officer has produced the sample and MO.1 along with the requisition. It was not challenged in cross examination. Therefore, non marking of the requisition is not fatal. Records of the trial court shows that as item No.2 of the property list, the sample seized under Ext.P1 mahazar was produced before the court and received as thondi No.462/1995 on 4/9/1995. The order passed by the learned Magistrate on the reverse side of the list shows that MO.1 item No.1 therein was returned to the Excise Inspector for safe custody at the Excise Office, Chelanur and item No.2 namely the sample was directed to be forwarded to the laboratory. Ext.P3 shows that the sample so forwarded, was received at the laboratory and the seal was intact. On examination it was found that the sample contained 18.6% by volume of Ethyl Alcohol. Though learned counsel CRRP 682/04 7 argued that as Ext.P3 report does not mention that the sample contained label with signature of the petitioner, it is not the sample which was prepared by PW1, on the evidence I cannot accept the said submission also. What is stated in Ext.P3 report is only that seal was intact. Sealed sample was produced in court. In such circumstances, for the absence of a specific observation in Ext.P3 to the effect on the sample there was label which contained the signature of the respondent, it cannot be said that there was no label. Ext.P3 report also does not show that there was a label containing the CR number. Therefore, I cannot accept the submission of the learned counsel that sample which was received at the laboratory, based on which Ext.P3 report was submitted was not the sample which was taken from MO.1 can by PW1 as stated in Ext.P1 report. It is conclusively CRRP 682/04 8 proved that MO.1 which was seized from the petitioner contained illicit arrack. 7. Though learned counsel argued that there is no evidence to prove that the liquor was in the possession of the petitioner, with the knowledge that it is illicit liquor, Section 58 of Abkari Act is not applicable, even when PW1 was cross examined or at the time of his examination under Section 313 of Code of Criminal Procedure, petitioner has no case that he was in possession of MO.1 can either under the belief or knowledge that it is lawfully manufactured liquor. When it is proved that it is illicit liquor the only conclusion that could be drawn is that petitioner was possessing the same with the knowledge that it is illicit liquor. If that be so, Section 58 of Kerala Abkari Act squarely applies. In such circumstances, conviction of the petitioner for CRRP 682/04 9 the offence under Section 58 of Abkari Act is perfectly legal. 8. Then the only question is regarding the sentence. Section 58 as on the date of commission of the offence provides for punishment of fine of not less than rupees fifteen thousand and imprisonment upto one year. Learned Magistrate awarded the minimum fine provided and a substantive sentence of simple imprisonment for two months. Considering the fact that the incident was in 1995 and prosecution has no case that petitioner was involved in an offence under the Abkari Act earlier, interest of justice will be met, if the sentence is reduced to simple imprisonment for fifteen days. Revision is allowed in part. Conviction of the petitioner for the offence under Section 58 of Abkari Act is confirmed. Sentence is CRRP 682/04 10 modified. Petitioner is sentenced to simple imprisonment for fifteen days and a fine of Rs.15,000/- and in default simple imprisonment for one month. Petitioner is directed to appear before Judicial First Class Magistrate,Quilandy on 30/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.