IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 CRL.REV.PET.NO. 585 OF 2001() ----------------------------- CRA.276/1998 OF ADDL.SESSIONS COURT, KOZHIKODE CC.882/1995 OF JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- KUNHUMON, S/O. THOMAS, PANAMATHODI HOUSE, ADOOR AMSOM DESOM, ADOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S) - RESPONDENT - COMPLAINANT: -------------------------------------------------------------- THE EXCISE INSPECTOR, VADAKARA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON 02/06/2009 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.585 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of June, 2009 O R D E R -------------- Petitioner faced trial for offence punishable under Section 55(a) of the Abkari Act (for short, “the Act”) and Rule 9 of the Foreign Liquor Rules (for short, “the Rules”) charge against him being that on 18.9.1995 at about 4.00 p.m. he was found by the Excise Inspector, Vadakara as transporting 12 bottles of Indian Made Foreign Liquor (Prince Brand brandy) from Mahe to Kerala. Learned Judicial First Class Magistrate found petitioner guilty, convicted and sentenced him to undergo simple imprisonment for six months and payment of fine of Rs.25,000/-. Default sentence of six months was also provided. In appeal conviction and sentence were confirmed. 2. P.W.1 is the Excise Inspector who is said to have detected the offence. P.W.2 is the Preventive Officer who claimed to have accompanied him. Evidence of P.Ws.1 and 2 is that they were patrolling around Madappally area on the relevant day and time and got information that illicit liquor is being transported in vehicles. P.W.1 prepared a search memo and sent the same to the court concerned. Thereafter himself and party searched bus No.KL-13/2527 which came from Mahe. Petitioner was seen keeping a cardboard box on his CRL. R.P. No.585 of 2001 -: 2 :- lap which on examination was found containing 12 bottles of Prince Brand brandy which did not carry the sticker of Kerala State Beverage Corporation. Nor did petitioner produce any valid document which authorised him to carry liquor. Petitioner was arrested on the spot. One of the 12 bottles was collected as sample. The sample as well rest of the bottles were taken to custody as per Ext.P1, mahazar. P.Ws.1 and 2 identified M.O.1 series as the rest of the bottles containing the contraband and M.O.1, cardboard box. P.W.1 produced M.O.1 series and M.O.2 in court. P.W.3 was the conductor of the bus in question. He stated that Excise officials searched the bus and seized liquor from one of the passengers. P.W.3 is an attester in Ext.P1. He did not identify petitioner as the person from whom contraband was seized. Exhibit P2 is the report of the Chemical Examiner which states that the sample contained 42.61% by volume of Ethyl Alcohol. 3. It is contended by learned counsel for petitioner that evidence of P.Ws.1 and 2 is not sufficient to prove the alleged incident. C.W.4, driver of the bus was not examined. No passenger from the bus was cited as witness. Further contention is that search conducted was in violation of the provisions of the Act and Section of 100 of the Code of Criminal Procedure (for short, “the Code”). It is contended CRL. R.P. No.585 of 2001 -: 3 :- that at any rate the offence was compoundable on the day of the incident. No effort was made by the Excise officials to compound the offence. Counsel placed reliance on the decision in Mariamma & Anr. v. State of Kerala & Ors. (1998(1) KLT 286). Public Prosecutor argued that there is no reason to interfere with the concurrent finding of fact entered by the courts below. 4. Sitting in revision what this Court is required to consider is whether there is any illegality, irregularity or impropriety in the finding entered by the courts below on the evidence on record. A re- appreciation of the evidence is not warranted. P.Ws. 1 and 2 have given evidence regarding the alleged incident. P.W.3, conductor of the bus substantially corroborated their version. Further corroboration for the evidence of P.Ws.1 and 2 come from Ext.P1, mahazar the preparation of which is admitted by P.W.3, one of the attesters. Merely for the reason that C.W.4, driver of the bus was not examined or passengers were not cited as witnesses, I am unable to say that evidence of P.Ws.1 to 3 has to be rejected. 5. Next contention is regarding the alleged illegality in the preparation of the search memo. P.W.1 stated in Ext.P1 that on getting information about transportation of illicit contraband in vehicles he prepared search memo and then searched and seized the CRL. R.P. No.585 of 2001 -: 4 :- contraband. It is true that learned Sessions Judge observed that it is not shown that search memo was prepared and sent to court. But Ext.P1 states that. Court below has observed that compliance with the provisions of Sec.36 of the Act and Sec.100 of the Code are required only as far as it is possible and in this case evidence shows that immediately on getting information P.Ws.1 and 2 and party searched the bus in question. Even if it is assumed that there is illegality in the search, that by itself will not vitiate the trial or conviction so far as it is not shown that any prejudice is caused to the petitioner. P.W.1, Excise Inspector has produced the material objects in court on 19.9.1995 itself. These facts are not under challenge. There is also no dispute regarding identity of material objects. Evidence of P.Ws.1 and 2 shows that contraband did not contain sticker of the Kerala State Beverages Corporation. It is therefore clear that the contraband was not sold or distributed through any outlet of the Corporation. The vehicle in question was coming from Mahe to Kerala. In these circumstances it is clear that petitioner was transporting illicit liquor from Mahe. So far as the argument based on the decision in Marimma's case is concerned Sec.67(a) of the Act referred to therein did not concern offence punishable under Sec.55(a) of the Act. Merely for the reason that there was no CRL. R.P. No.585 of 2001 -: 5 :- composition of the offence conviction of the petitioner cannot be challenged. 6. Learned counsel then submitted that sentence imposed is excessive. According to the learned counsel petitioner is not involved in any other case. He prayed that sentence may be confined to fine. 7. There is nothing on record to show that petitioner is involved in any other case. As on the date of the incident offence under Sec.55(a) of the Act read with Rule 9 of the Rules was punishable with imprisonment which may extend to 2 years and fine of Rs.25,000/-. Trial court sentenced the petitioner to undergo simple imprisonment for six months and payment of fine of Rs.25,000/-. Petitioner must be given an opportunity to correct himself rather than sending him to the prison to get mixed up with offenders detained there. In the circumstances substantive is modified as simple imprisonment till rising of the court. There is no reason to interfere with the sentence of fine or default sentence. Resultantly revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted two months’ time from this day to deposit the fine in the trial CRL. R.P. No.585 of 2001 -: 6 :- court. In case of failure, he has to undergo default sentence ordered by learned magistrate. Petitioner shall appear in the trail court on 10.8.2009 to receive the sentence. Criminal Miscellaneous Petition No.2816 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.585 OF 2001 =================== O R D E R 2ND JUNE, 2009