IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 1486 of 2001() ----------------------------------------- CRA.33/1999 of II ADDL. SESSIONS COURT, PALAKKAD CC.422/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- VASUDEVAN, S/O.CHAMY, NALLEPULLY, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.JACOB SEBASTIAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PORSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1486 of 2001 ORDER ON CRL.MP. NO.6943/2001 IN CRRP NO.1486/2001 DISMISSED 27/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1486 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2009 ORDER The revision petitioner in this case is the accused in C.C.No.422/1996 of Judicial First Class Magistrate Court, Chittur and appellant in Crl.Appeal No.33/99 of Second Additional Sessions Court, Palakkad. He was convicted under Section 55(g) of Abkari Act and was sentenced to undergo simple imprisonment for three months and to pay fine of Rs. 1000/- in default, to undergo simple imprisonment for a further period of one month by the trial court which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on July 6, 1996 at about 5.40 P.M. the accused was found carrying a mud pot containing 15 litres of wash at Nellepully in Chittur Taluk and that thereby committed the offence punishable under Section 55(g) of Abkari Act. 3. The accused when appeared before the trial court pleaded Crl.R.P.No.1486/2001 Page numbers not guilty to a charge under Section 55(g) of Abkari Act. PWs 1 to 4 were examined and Exts.P1 to P3 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. On the side of the accused, DWs 1 and 2 were examined. 4. On an appreciation of evidence, the trial court found the accused guilty of the offence punishable under Section 58(g) of Abkari Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging in conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(g) of Abkari Act rendered by trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P.No.1486/2001 Page numbers Point No.1 6. PWs 1 to 4 were examined. Exts.P1 to P3 were marked on the side of the prosecution. PW1, the then Preventive Officer , Excise Range , Chittur and PW4, the then Excise Inspector Chittur Range, testified before the trial court that on July 6, 1996 at about 5.40 P.M. at Thottassery they found the accused carrying a mud pot MO1 on his shoulder and on verification it was found to contain 15 litres of wash which could be used for distilling arrack. 7. I have gone through the evidence of PWs 1 and 4 . Nothing was brought our during their cross examination to discredit their evidence. The main contention of the revision petitioner was that due to previous enmity, PWs 1 and 4 foisted a false case against him. There is no substance in the above contention. No defence evidence is adduced by the accused to show that PWs 1 and 4 have any previous enmity towards him. PWs 2 and 3 who are the witnesses to search and seizure of contraband articles did not support the prosecution. I have found that both the courts below were perfectly justified in accepting the evidence of PWs 1 and 4 regarding the search and seizure of Crl.R.P.No.1486/2001 Page numbers contraband articles from the accused. An attempt was made on the part of the accused to show that when DW1 his father was arrested, the accused went to the office of the Excise officials and that thereafter they foist a false case against him. There is no substance in the above contention. DW1 would say that he was arrested by the Excise officials and along with him DW2 and accused also came and from there they foisted a false case against the accused. DW1 did not say for what purpose he was arrested. If he was arrested by the Excise officials, there would be document in the office of the Excise Range, Chittur. Accused did not take any steps to produce those documents. Therefore the version of DW1 and DW2 was arrested by the Excise officials appears to be not true. But both the courts below have also rejected their evidence. On going through their evidence, I find no reason to come to a different conclusion. For all these reasons, I am of the view that the trial court as well as the lower appellate court were right in believing the evidence of PWs 1 and 4 and coming to the conclusion that the accused was found in possession of 15 litres of wash as alleged by the prosecution. Crl.R.P.No.1486/2001 Page numbers Point No.2 8. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 1000/-, in default, to undergo simple imprisonment for a further period of one month which is confirmed in appeal. The incident occurred in the year 1996 and the accused is now aged more than 50. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 25,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. conviction of the revision petitioner under Section 55(g) of the Abkari Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for a further period of three months. His bail bonds are cancelled. Revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. Two month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1486/2001 Page numbers