IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.REV.PET.NO. 3161 OF 2008() ---------------------------------------------- CRA.456/2006 OF ADDL. SESSIONS COURT (ADHOC), THRISSUR SC.108/2006 OF II ADDL. ASSISTANT SESSIONS COURT, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- SURA @ SURENDRAN, S/O.SEKHARAN, PATTUKULANGARA HOUSE, MUNDATHOODU VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING EXCISE INSPECTOR, WADAKKANCHERRY EXCISE RANGE. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3161 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2009 O R D E R -------------- Heard counsel for petitioner and Public Prosecutor. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc) Fast Track, Thrissur in Crl. Appeal No.456 of 2006 confirming conviction and sentence of petitioner in S.C. No.108 of 2006 of the court of Additional Assistant Sessions Judge, Thrissur for offence punishable under Section 8(1) and (2) of the Abkari Act. It is contended in this revision that conviction and sentence are not legal and proper. 2. According to prosecution, petitioner was found possessing about 3 litres of illicit arrack in a jerkin on 22.11.2002. P.W.1, Preventive Officer is said to have detected the offence. P.W2, Excise guard accompanied P.W.1 for patrol duty. P.Ws.1 and 2 have given evidence that on the relevant day and place while on patrol duty they found petitioner with the contraband in a jerkin proved as M.O.1. P.W.1 collected 200 ml. of arrack as sample and the same and rest were properly packed, labeled, sealed and seized as per Ext.P5, mahazar. Exhibit P2 is the label affixed on M.O.1. Petitioner was CRL.R.P. No.3161 of 2008 -: 2 :- arrested at the spot. Exhibit P1 is the arrest memo. Exhibit P3 is produced to show that notice of arrest of petitioner was given to his close relative. Exhibit P4 is the report for search of body of petitioner. It is the further case of P.Ws.1 and 2 that on the same day petitioner along with records and M.O.1 were produced before Excise Inspector. P.W.3 is an independent witness for alleged detection of the offence. He admitted signing Exts.P1 to P5 but he claimed that he had not witnessed the seizure. He further admitted that excise officials had been to the place of occurrence. Evidence of P.W.3 shows that petitioner is closely known to him. P.W.5 is the Village Officer who prepared Ext.P11, sketch of scene of occurrence. P.W.1 produced material object and petitioner along with case records before P.W.4, Excise Inspector on 29.11.2002. He caused production of the records, material objects and accused before court on 30.11.2002. Exhibit P6 is the crime and occurrence report and Ext.P7, property list prepared by him. Exhibit P9 is the office copy of forwarding note for sending the sample for chemical examination. Exhibit P10 is the chemical examination report dated 28.2.2004 which certified that the sample contained 30.30% by volume of Ethyl Alcohol. From the above evidence courts below found in favour of the prosecution. 3. It is true that P.W.3 did not support the prosecution but even the evidence of P.W.3 would show that on the relevant day and time excise officials had been to the place of occurrence where CRL.R.P. No.3161 of 2008 -: 3 :- Exts.P1 to P5 were prepared. P.W.3 also admits attesting Exts.P1 to P5. That P.W.3, a close acquiantant of petitioner did not support prosecution is no reason to disbelieve the evidence of P.Ws.1 and 2. On going through the judgments under challenge and having heard learned counsel I find no reason to discard the evidence of P.Ws.1 and 2. Exhibits P1 to P5 support their version. As such no interference is required with the finding of the courts below that petitioner carried illicit arrack on the relevant day, time and place. Conviction of petitioner does not require interference. 4. Courts below sentenced petitioner to undergo rigorous imprisonment for two years and payment of fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for three months. It is submitted by learned counsel that petitioner has already undergone imprisonment for more than eighty days. Learned Public Prosecutor submitted that petitioner was apprehended on 29.11.2002 and released on bail on 31.3.2003 and in the course of trial was taken to custody on 14.3.2006 since he violated bail conditions and was released on 10.4.2006. Petitioner is a Coolie by occupation. It is not shown that he is involved in any other case. In these circumstances I am satisfied that the period of imprisonment already undergone by the petitioner is sufficient sentence so far as the substantive sentence is concerned. There is no reason to interfere with the sentence of fine. Default sentence is however modified as CRL.R.P. No.3161 of 2008 -: 4 :- simple imprisonment for one month. Resultantly this revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified and confined to the period of imprisonment already undergone by him during the crime and trial stage. (ii) Sentence for non-payment of fine is modified as simple imprisonment for one month. (iii) Petitioner is granted one months’ time from this day to deposit the fine in the trial court. Petitioner shall appear in the trial court on 7.9.2009 to receive the sentence. Until then warrant if any against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv