IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 1258 of 2001 ------------------------------ CRA.199/1997 of SESSIONS COURT, KASARAGOD CC.339/1996 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER:APPELLANT/ACCUSED --------------------- KANDATHIL NALINI, W/O.KUNHIKANNAN, THATHANAN DESOM, PEROLE VILLAGE, NILESHWAR, HOSDURG TALUK. BY ADV. SRI.T.K.VIPINDAS RESPONDENT:RESPONDENT/COMPLAINANT --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.1258 of 2001 ---------------------------------------- Dated this the 5th day of August 2009 O R D E R The petitioner, a woman, has filed this revision petition to assail the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(g) of the Kerala Abkari Act. She now faces a substantive sentence of S.I for a period of three months and to pay a fine of Rs.25,000/- and in default to undergo S.I for a period of three months. 2. The crux of the allegations against the petitioner is that at 1.30 p.m on 12/4/1996, when she was intercepted by an excise party led by PW1, she was found to keep in her possession in MO1 plastic pot 10 litres of wash, thereby she is alleged to have committed the offence punishable under Section 55(g) of the Kerala Abkari Act. 3. Cognizance was taken by the learned Magistrate. The accused denied the offence alleged against her. Thereupon, the prosecution examined Pws 1 to 3 and proved Exts.P1 to P3. MO1 was also marked. PW1 is the Preventive Officer who allegedly intercepted the accused, detected the offence and Crl.R.P.No.1258/09 2 effected seizure of MO1 from the possession of the petitioner. Ext.P1 is the seizure mahazer prepared by him. PW2 is an attester to Ext.P1 seizure mahazer. PW3 is the Excise Inspector before whom the seized articles and the relevant documents were produced by PW1. Ext.P2 is the crime and occurrence report. Ext.P3 is the chemical examiner's report. 4. The accused denied the offence alleged against him. In the course of cross-examination and when examined under Section 313 Cr.P.C, she took up a defence of total denial. No defence evidence was adduced. 5. The courts below concurrently came to the conclusion that the oral evidence of PW1 can safely be accepted. His evidence, if accepted, it was found established the offence under Section 55(g) of the Kerala Abkari Act, it was held. Accordingly, the courts below proceeded to pass the impugned concurrent verdict of guilty, conviction and sentence. 6. Before me, the learned counsel for the petitioner/accused and the learned Public Prosecutor had advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds: Crl.R.P.No.1258/09 3 i) The courts below should not have accepted and acted upon the uncorroborated oral evidence of PW1. ii) At any rate, the sentence imposed is excessive. 7. The prosecution relied on the evidence of PW1. The evidence of PW1 is about the seizure of MO1 with the contraband liquor from the possession of the petitioner. The prosecution relied on the contemporaneous Ext.P1 seizure mahazer to support the oral evidence of PW1. The prosecution had examined PW2, an attester to Ext.P1 seizure mahazer. PW2 admitted his signature; but did not subscribe to the contents of Ext.P1. PW2 evasively stated that though he had subscribed his signature, he had not witnessed the act of seizure. 8. The learned counsel for the petitioner contends that PW1 is an Excise official and is hence interested in the prosecution. Reliance should not have been placed on the uncorroborated interested oral evidence of PW1, contends the learned counsel for the petitioner strenuously. He, in support of his contention, further urges that no other witness has been examined though many appear to have been available at the scene of the crime. The learned counsel for the petitioner contends that though the seizure was effected on 12/4/1996, the Crl.R.P.No.1258/09 4 contraband article was produced before the learned Magistrate only on 07/051996 as per the records of the court. This unexplained delay in production of the material objects before the court must arouse doubt and suspicion. Consequently, the petitioner is entitled to the benefit of doubt, contends the learned counsel for the petitioner. 9. The learned Public Prosecutor, on the other hand, contends that the courts below have committed no indiscretion warranting revisional interference in placing reliance on the oral evidence of PW1. PW1 is, of course, an excise official. In that view of the matter, PW1 is interested in the prosecution. Successful conduct of the prosecution is the sublime duty of public officials. This interest which every conscientious public official is bound to and expected to have in the successful detection of offence and prosecution of offenders cannot, by any stretch of imagination, reduce him to the category of interested witnesses, for whose oral evidence, corroboration is insisted by courts not as a rule of law; but as a rule of prudence. I have gone through the oral evidence of PW1 in detail. I have gone through the 313 statement of the accused. To me, it appears to be of crucial relevance that there is not a semblance of a Crl.R.P.No.1258/09 5 challenge against the evidence of PW1 on the ground that he is in any way interested against the accused. In these circumstances, the mere fact that PW1 is an excise official and in such capacity interested in the prosecution cannot justify the omnibus rejection of the oral evidence of PW1. 10. I find merit in the contention of the learned Public Prosecutor that the oral evidence of PW1 is eminently supported by the contents of the contemporaneous seizure mahazer Ext.P1. It is of course true that Ext.P1 had reached the court only on 15/4/1996. But that delay of 3 days cannot, at all, justify any doubt or suspicion against the oral evidence of PW1 especially when there is not a semblance of motive suggested against PW1 to speak falsely against the petitioner. The learned counsel for the petitioner relying on documents of the court contends that the material objects had reached the court only on 07/05/1996, 25 days after the detection of the crime on 12/4/1996. Crucially and significantly I note that PW1 or PW3 was not subjected to any cross-examination on this aspect. In these circumstances, the mere inconsequential delay from 12/4/1996 to 07/05/1996 in producing the material objects before court, does not impress me on a valid reason for discarding the evidence of PW1, more so, Crl.R.P.No.1258/09 6 when the court gets assurance that Ext.P2 crime and occurrence report had reached the court on 15/4/1996. The contents of Ext.P2 dated 15/4/1996 do also support the oral evidence of PW1. 11. PW2 has, of course, turned hostile; but he had unambiguously admitted his signature in Ext.P1. As already noted, the contents of the contemporaneous seizure mahazer eminently support the oral evidence of PW1. Hostility of PW2 is, according to me, of no crucial significance. Courts in India are unfortunately exposed to the hostility of independent eye witnesses. With impunity, witnesses swear and speak falsehood. That must impress upon the courts the need to subject evidence to close scrutiny but such hostility cannot persuade the courts to commit the indiscretion of rejecting the evidence that is already available. PW2 has stated without any conjunction that he had not witnessed the seizure and had signed the mahazer without even adverting to the contents thereof. In these circumstances, the hostility of PW2 cannot also deliver any advantage to the accused. 12. The evidence of PW1 and Ext.P1 when accepted clearly shows that the petitioner was in possession of MO1 Crl.R.P.No.1258/09 7 containing contraband liquor. PW1 stated that it was wash intended for the preparation of illicit arrack. Under Section 55 (g) of the Kerala Abkari Act, possession of any material whatsoever for the purpose of manufacturing liquor is objectionable. The chemical examiner's report confirms that the article contained a low percentage of alcohol confirming the oral evidence of PW1 that it was a material used for the manufacturing of liquor. 13. Thus, I find absolutely no reason at this third tier of criminal litigation at the revisional stage to interfere with the concurrent verdict of guilty and conviction of the petitioner under Section 55(g) of the Kerala Abkari Act. The decision of the courts below to place reliance on the oral evidence of PW1 as also the finding that the offence under Section 55(g) of the Kerala Abkari Act has been made out do appear to me to be absolutely correct, fair, just and reasonable. The challenge on the first ground does, in these circumstances, fail. 14. The learned counsel for the petitioner finally contends that the sentence imposed is excessive. It may be taken note of that the revision petitioner was a woman aged 35 years in 1997. She is not shown to have any culpable past or questionable Crl.R.P.No.1258/09 8 antecedents, submits the learned counsel for the petitioner. The learned counsel for the petitioner further submits that the petitioner has been enduring the trauma of this prosecution for the past about 13 years. At the relevant time punishment for Section 55(g) of the Kerala Abkari Act was only imprisonment for a term which may extent to 2 years and fine which shall not be less than Rs.25,000/-, points out the learned counsel for the petitioner. At any rate, the substantive sentence of imprisonment may be modified and reduced. The petitioner may not be dragged to prison now for the indiscretion committed by her more than 13 years back, contends the learned counsel for the petitioner. 15. I take note of the relevant provisions regarding punishment for the offence under Section 55(g) of the Kerala Abkari Act. Imprisonment for a period of 2 years and fine which shall not be less than Rs.25,000/- is the punishment. I am satisfied, in these circumstances, that the sentence of fine can be enhanced to accommodate the prayer of the learned counsel for the petitioner for reduction of the substantive sentence of imprisonment. The prayer for reduction of the substantive sentence of imprisonment is found to be reasonable and just. Crl.R.P.No.1258/09 9 The same is accepted. 16. The challenge raised in this revision petition succeeds only to the above extent. 17. In the result, a) This Crl.R.P is allowed in part. b) The verdict of guilty and conviction of the petitioner under Section 55(g) of the Kerala Abkari Act are upheld. c) But the sentence imposed on the petitioner is modified. In supersession of the sentence imposed on the petitioner by the courts below, she is sentenced to undergo imprisonment till rising of court. She is further directed to pay a fine of Rs.30,000/- (Rupees thirty thousand only) and in default to undergo S.I for a period of three months. 18. The petitioner shall have time till 07/09/2009 to undergo the modified sentence hereby imposed. She shall appear and her sureties shall produce her before the learned Magistrate on or before that date. (R.BASANT, JUDGE) jsr Crl.R.P.No.1258/09 10 R.BASANT, J Crl.R.P.No.1258 of 2001 ORDER 05/08/2009 Crl.R.P.No.1258/09 11