IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 319 of 2002(B) ----------------------------- CRA.244/1998 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.152/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- RAMAN, S/O.KELAPPAN, POOVAN MALAYIL HOUSE, KIDAVOOR AMSOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/ RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 319 of 2002(B) ORDER ON CRL.M.P.NO.2329/2002 IN CRL.R.P.NO.319/2002 DISMISSED. 13.10.2008 SD/- THOMAS P.JOSEPH, JUDGE // TRUE COPY // P.A. TO JUDGE. THOMAS P.JOSEPH, J. =================== Crl.R.P. No.319 of 2002 =============================== Dated this the 13th day of October, 2008. O R D E R Heard both sides. 2. Revision petitioner stands convicted for offence punishable under Section 58 of the Abkari Act for alleged possession of illicit arrack. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.50,000/-. The appeal was dismissed. Hence this revision. 3. Learned counsel for the revision petitioner submitted that evidence of PWs 1 and 2 regarding the alleged seizure of contraband from the revision petitioner is not reliable. It is also submitted that at any rate, it is not shown that revision petitioner was in conscious possession of the contraband. 4. Case is that about 10 litres of illicit arrack was seized from the possession of revision petitioner on 8.11.1996 on the pathway in front of the house of Poovanmalayil Devi. PW1, preventive officer is said to have detected the offence. Himself and PW2 who claimed to have accompanied PW1 gave evidence regarding the alleged seizure and identified MO1, plastic Crl.R.P. No.319 of 2002 2 can in which revision petitioner allegedly carried the contraband. Ext.P1 is the mahazar for its seizure, said to be prepared by PW1 at the spot. PW3 is an independent witness and attestor in Ext.P1, but he did not support the prosecution. PW4, excise inspector investigated the case and filed complaint. Ext.P2 is the crime and offence report and Ext.P3 is the requisition to forward the sample collected by PW1 to the laboratory for chemical examination. Ext.P4 is the report of chemical examination where it is stated that the sample contained 19.40% by volume of Ethyl Alcohol. 5. So far as the incident proper is concerned, there is evidence of PWs 1 and 2 which gets corroboration from Ext.P1 as well. Merely for the reason that PW3 refused to support and particularly as he also admitted signing Ext.P1 though, according to him in a different circumstance, evidence of PWs 1 and 2 cannot be discarded. Courts below placed reliance on the evidence of PWs 1 and 2 and found that the contraband seized from the possession of the revision petitioner. I do not find reason to interfere. 6. The more serious argument advanced by counsel for Crl.R.P. No.319 of 2002 3 revision petitioner is that since the presumption under Section 58 of the Abkari act was not available as the incident occurred on 8.11.1996 before the amendment of 1997, it was the responsibility of prosecution to prove that revision petitioner possessed the contraband knowing it to be illicit arrack. Learned counsel explained that during the time of incident, mere possession of arrack was not made punishable and charge against the revision petitioner under Section 58 was for possession of illicit arrack in the sense that the percentage of Ethyl Alcohol in the contraband was below the minimum limit prescribed by the Government. Learned counsel submits that a layman was not expected to know about the percentage of ethyl alcohol in the arrack in his possession and therefore, investigating officer was bound to investigate into the circumstances in which revision petitioner came to be in possession of the contraband. PW1 in the case on hand stated that it is not seen recorded that he had questioned revision petitioner about the contents of the plastic can. 7. Assuming that the said statement of PW1 indicated (as against what is stated in Ext.P1 itself) that he had not questioned Crl.R.P. No.319 of 2002 4 revision petitioner regarding the contents, the next question is whether it could be said that the revision petitioner was in conscious possession of the contraband in the sense that he possessed it knowing it to be containing Ethyl Alcohol less than the minimum prescribed concentration. Learned counsel placed reliance on the decisions reported in Santhosh v. State of Kerala (2007 (2) KLT 636) and Surendran v. Excise Inspector (2004 (1) KLT 404). 8. In Santhosh v. State of Kerala, learned Single Judge of this Court was considering the question whether a charge under Section 55(g) of the Act could be quashed for want of material to show that possession of the article in that case was only for the purpose of manufacture of illicit arrack. It is seen from the discussion in the judgment that public prosecutor who appeared for the State in that case after perusal of the entire CD, told the learned Judge that there was no material suggesting that accused in that case had carried the said article for the purpose of manufacture of arrack, since the said article could be used for other purposes also. Learned Judge observed that the mere fact that the accused was found perplexed on seeing the excise party Crl.R.P. No.319 of 2002 5 by itself is not sufficient to indicate that he had committed any offence. Holding so, complaint was quashed. In Surendran v. Excise Inspector, a Division Bench of this Court considered the ingredients of Section 58 of the Abkari Act and held that there was no finding recorded by either trial court or lower appellate court that the accused in that case was having knowledge that it was illicit arrack. This court observed that it appears that “even the ingredients of Section 58 are not satisfied”. It is seen that in that case, the conviction of accused was not altogether set aside but it was altered to Section 58. Therefore the observation relied by the learned counsel cannot be taken as the ratio of that decision. 9. So far as the case on hand is concerned, I found from evidence as concurrently found by the courts below also that the contraband was seized from the possession of revision petitioner. He did not have explanation as to how he came to be in possession of the contraband. No suggestion even was made to PW1, instead, it was a case of mere denial pleaded by revision petitioner. 10. The next question is whether it could be said that Crl.R.P. No.319 of 2002 6 revision petitioner possessed the contraband knowing it to be illicit arrack. It is hard to expect the prosecution to produce direct evidence to show that revision petitioner was aware that percentage of ethyl alcohol was less than the minimum prescribed limit by the State Government. That has to be drawn from attending circumstances. Once possession is proved, it is for the revision petitioner to show that he was not in 'conscious possession' since that is a matter within his special knowledge and required to be proved by him as stated in 106 of the Indian Evidence Act. Though not necessarily by leading direct evidence, revision petitioner should have discharged that burden. That is not done. There is also the version of PW1 that on seeing the excise party, revision petitioner was found perplexed. In these circumstances, In am not inclined to accept the contention that the revision petitioner had no conscious possession of the contraband. Conviction has to be sustained. 11. So far as sentence is concerned, incident happened 12 years back and even as per prosecution case, offence committed is only under Section 58 for possession of arrack containing ethyl alcohol less than the minimum prescribed limit. It is not shown Crl.R.P. No.319 of 2002 7 that revision petitioner is involved in any other case. As on the date of the incident the offence was punishable with imprisonment upto two years (with no minimum imprisonment prescribed) and fine not less than Rs.15,000/-. In the circumstances, I am satisfied that simple imprisonment till rising of court and fine as imposed by the courts below is sufficient in the end of justice. Resultantly, the revision petition is partly allowed in the following manner. i) Substantive sentence awarded to revision petitioner is modified as simple imprisonment till rising of court. ii) Sentence of fine is confirmed. The amount, if any already deposited will be adjusted in the fine payable. iii) The Revision petitioner is granted three months' time to deposit the fine in the trial court. Crl.R.P. No.319 of 2002 8 iv) Revision petitioner shall surrender in the trial court on 16.1.2009. Bail bond is cancelled. THOMAS P.JOSEPH, JUDGE. bkn/-