IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 1881 of 2004(A) ------------------------------- CRA.146/2001 of SESSIONS COURT, KASARAGOD C.C.623/1997 OF Judicial First Class Magistrate-I, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- V.RAMAN @ BALAN, AGED 33 YEARS, S/O.LATE VELLAN, CHULLIKKARA HARIJAN COLONY, KODOM VILLAGE, HOSDURG TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): /RESPONDENTS/COMPLAINANT. --------------------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, HOSDURG RANGE, KASARAGOD. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.8626/04 IN CRRP.1881/04 DISMISSED 4/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 1881 OF 2004 =========================== Dated this the 4th day of June,2010 ORDER Petitioner the accused in C.C.623/1997 on the file of Judicial First Class Magistrate's Court-I, Hosdurg was convicted and sentenced for the offence under section 55(a) of Abkari Act. Though he challenged the conviction and sentence before Sessions Court, Kasaragod in Crl.A.146/2001, learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that when the independent witnesses Pws.1 and 2 turned hostile to the prosecution, courts below Crl.R.P.1881/2004 2 should not have relied on the evidence of PW3, the Excise official alone, to convict the petitioner. It is argued that there is considerable delay in producing the contraband article before the court and it is fatal and courts below ought to have applied the decision in Narayani v. Excise Inspector (2002(3) KLT 725) and acquitted the petitioner. Learned Public Prosecutor submitted that learned Magistrate and learned Sessions Judge found the evidence of PW3 trustworthy and reliable and there is no reason to disbelieve the evidence of PW3 for the hostility shown by Pws 1 and 2 and the evidence establishes that petitioner was in possession of 20 packets each of 100 ml. Karnataka made arrack and therefore the conviction for the offence under section 55(a) is perfectly legal. 4. As held by this court in Vikraman v. State of Kerala (2007(1) KLT 1010) the hostility shown by the independent mahazar witness cannot be a valid reason to discard the evidence of an Excise Official, provided his evidence is credible and Crl.R.P.1881/2004 3 reliable. Learned Sessions Judge on appreciation of the evidence of PW3, found that his evidence trustworthy and credible. Nothing was pointed out to hold that the appreciation of evidence was perverse or to interfere with the findings based on appreciation of the evidence of PW3. On the evidence, it is proved that petitioner was in possession of 20 packets, each containing 100 ml. of Karnataka made arrack. 5. Then the question is whether because of the delay in producing the M0s before the court, the case is to be thrown out. As found by the courts below, the packets were seized on 25.3.1997. They were produced before the court on 4.4.1997. Sample was sent for analysis on 30.4.1997. Ext.P4 report of chemical analysis was obtained on 14.7.1997. Eventhough there is a delay of eight days in producing the seized packets before the court, it has not caused any substantial prejudice to the accused. The packets were sealed. Actually the packets seized were all sealed. That itself ensures the guarantee that the sample which was Crl.R.P.1881/2004 4 sent to the Laboratory, for chemical analysis is in the same. As held by this court in Vikraman's case (supra) and in Kunhikannan v. State (2006(4) 469, in the nature of the case the delay is not fatal. Therefore on that ground also, the conviction cannot be interfered with. 6. As the petitioner was found in possession of Karnataka arrack which was illegally imported from Karnataka, conviction for the offence under section 55(a) is also legal. Section 55(a), as on the date of commission of the offence provide for a sentence of imprisonment for two years and fine which shall not be less than Rs.25,000/-. Learned Sessions Judge sentenced petitioner to rigorous imprisonment for six months in addition to a fine of Rs.25,000/-. The sentence awarded is lenient and does not warrant any interference. Revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006