IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Crl.Rev.Pet.No. 309 of 2008() ----------------------------- CRA.240/2000 of THE ADDITIONAL SESSIONS JUDGE(ADHOC ii), KASARGOD SC.5/1999 of ASSISTANT SESSIONS COURT, KASARAGOD .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ T. PRASANNAN, AGED 42 YEARS, S/O. THANKAPPAN, R/AT ARULADKULAM, NEKRAJE, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ========================= CRL.R.P.NO.309 OF 2008 ========================= Dated this the 11th day of March 2008 JUDGMENT The petitioner, who has been concurrently convicted and sentenced for an offence punishable under Section 55(a) of the Abkari Act for allegedly having been found in possession and transporting 200 packets of Karnataka made arrack (each packet containing 100 ml.) at 5.30 p.m. on 11.6.1995, challenges the conviction entered and the sentence passed against him. 2. Even though the learned counsel appearing for the revision petitioner assailed on various grounds the conviction recorded against the petitioner, this court sitting in revision will be loath to interfere with the conviction concurrently recorded by the courts below after a careful evaluation of the oral and documentary evidence. PW1, the Excise Inspector was the officer who detected the offence. He was on patrol duty along with PW2 Excise Guard. After seizing the 200 packets of arrack, he took three packets as sample and produced the sample packets as well as the remaining packets in the white plastic carry bag which CRL.R.P.309/2008 2 were marked as MOs. 1 to 3 before the trial court. The detection and seizure was on 11.6.1997. 12.6.1997 and 13.6.1997 were public holidays and on 16.6.1997, he produced the contraband articles including the samples before the Magistrate. During the course of investigation, Ext.P4 forwarding note was submitted for sending the sample packets for chemical analysis. The said request was complied with by the learned Magistrate. Ext.P5 is the certificate of chemical analysis as per which the samples were found to contain 32.02% by volume of Ethyl Alcohol. 3. Learned counsel appearing for the revision petitioner made the following submissions in support of his attack. There is unexplained delay of five days in producing the seized properties before the court. PWs.3 and 4, who are the independent witnesses to the seizure, turned hostile to the prosecution. The specimen impression of seal was not sent to the court by the detecting officer. 4. I am afraid that I cannot agree with the above submissions. As 12.6.1997 and 13.6.1997 were second Saturday and Sunday on which days the court was closed, the detecting officer's testimony is quite credible when he says that before production on 16.6.1997, the properties were in his safe CRL.R.P.309/2008 3 custody. Under these circumstances, the delay of 5 days cannot be said to be fatal to the prosecution. 5. The law does not insist that the detecting officer should send a specimen impression of the seal along with the properties forwarded to the court. Hence failure on the part of PW1 in not sending specimen impression of the seal cannot be fatal to the prosecution. 6. PWs.3 and 4, the independent witnesses, no doubt, turned hostile to the prosecution. This is not a new development. Courts are familiar with such witnesses and in the face of the credible testimony of PWs. 1 and 2, the disloyalty shown by PWs.3 and 4 cannot be taken seriously.(see Kuttapan v State of Kerala 1981 KLT S.N.9). 7. The evidence in the case would show that the petitioner was found in possession of 200 packets of Karnataka made arrack each packet containing 100 ml. With effect from 3.6.1997, no person is expected to manufacture, import, export, transport, without permit, transit, possess, store, distribute, bottle or sell arrack in any form in view of Section 8(1) of the Abkari Act. After the amendment, arrack, if possessed by a person is an offence whatever be its quantity. Under these CRL.R.P.309/2008 4 circumstances, the conviction has been rightly entered against the revision petitioner and the same is accordingly confirmed. 8. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. For the aforesaid conviction, he is sentenced to rigorous imprisonment for one year and also to pay a fine of Rs.1 lakh and on default to pay the fine, to suffer rigorous imprisonment for six months. Learned counsel for the petitioner would submit that the petitioner is a physically handicapped person who deserves leniency in this case. Even if the petitioner is a physically handicapped person that by itself cannot constitute a circumstance to reduce the sentence. Having regard to the nature of the offence and the deleterious effect which it causes on the population, I do not find any good ground to interfere with the sentence imposed on the revision petitioner. In the result, this revision petition is dismissed confirming the conviction and sentence as above. V.RAMKUMAR, JUDGE css/ CRL.R.P.309/2008 5