IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 Crl.Rev.Pet.No. 434 of 2002() ----------------------------- CRA.152/1998 of ADDL.SESSIONS COURT (FAST TRACK), ALAPPUZHA CC.183/1996 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BALAN,AGED 54 YEARS,S/O.PRABHAKARA PANICKER,NALUPJURAKKAL VEETIL,CHANGANKARI MURI, EDATHUA,KUTTANADU,ALAPPUZHA DISTRICT. BY ADV. SRI.CHERIYAN KURUVILLA SRI.V.SATHEESH SRI.S.SANAL KUMAR RESPONDENT(S): /RESPONDENT/COMPLAINANT -------------------------- STATE OF KERALA-REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P .NO.2911/02 IN CRRP 434/02 DISMISSED 17/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.434 OF 2002 --------------------------------------------- Dated 17th June, 2010 O R D E R Petitioner, the accused in C.C.183/1996 was convicted and sentenced to rigorous imprisonment for six months and fine of Rs.1,000/- for the offence under Section 55(i) of Abkari Act. Petitioner challenged the conviction and sentence before Sessions court, Alappuzha in Crl.A.152/1998. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRRP 434/02 2 3. Argument of the learned counsel is that shop from where the toddy was seized is a licensed toddy shop and licensee was Rangaswami and in such circumstances, conviction for the offence under Section 55(i) of Abkari Act is not sustainable. It is contended that the petitioner was arrested for the solitary reason that he was found in the shed at the time of search conducted by PW4 and at the time of investigation no effort was made to find out who the owner and occupier of the shed, from where contraband articles were seized and mere presence of the petitioner at the time of search is not a criteria to hold that he was in possession of the contraband articles kept therein and in such circumstances, conviction is not sustainable. It is also contended that in the light of the evidence of Pws.1 and 2 that it is a licensed toddy shop and when CRRP 434/02 3 Ext.D1 establishes that license was issued to T.S.No.21, courts below should have found that petitioner did not commit the offence. 4. Learned Public Prosecutor pointed out that evidence of Pws.1 to 4 establish that petitioner was conducting sale of toddy in that temporary shed and there is no license for that shop and therefore, conviction of the petitioner for the offence under Section 55(i) is perfectly legal. 5. Prosecution case is that PW4 Circle Inspector of Police on getting information that sale of toddy is being conducted in a temporary shed without license unlawfully, he conducted a search on 8/8/1995 at about 6.45 p.m and found the petitioner running the shop in a temporary thatched shed at Puthuckari and under ExtP3 mahazar Mos.1 to 4 cans and 40 bottles of toddy kept therein were seized. CRRP 434/02 4 Petitioner was arrested and seized articles were produced before PW3 who registered the case under Ext.P4 FIR. Later case was transferred to the Excise and Ext.P1 occurrence report was submitted before the court. Petitioner pleaded not guilty. Prosecution examined four witnesses and identified Mos.1 to 4 and marked Ext.P1 to P4. On the side of the petitioner DW1 Excise Commissioner was examined and Ext.D1 true copy of the license register showing the license issued to T.S.No.21 was marked. Learned Magistrate on the evidence found that evidence of Pws.1 to 4 with Ext.P3 establishes that when the search was conducted, petitioner was conducting sale of toddy in that temporary shed and there was no license to run the toddy shop. Though it was contended that it was the licensed toddy shop of Rangaswami, learned Magistrate found that it is a CRRP 434/02 5 temporary shed, where toddy shop was conducted without a license. Petitioner was therefore convicted and sentenced for the offence under Section 55(i) of the Abkari Act. Learned Sessions Judge on re-appreciation of the evidence conformed the findings and dismissed the appeal. It is challenged in the revision. Argument of the learned counsel is that there is no evidence to prove that petitioner was conducting the toddy shop and that there is no license for the toddy shop and therefore, the conviction is not sustainable. 6. Ext.P3 seizure mahazar, the contemporaneous record prepared by PW4 at the time of seizure, with the evidence of PW1 establish that PW4 conducted a search and found the petitioner inside the temporary shed with the contraband articles. The temporary shed was not having any building number. It was CRRP 434/02 6 suggested by the petitioner to PW1 that the shed was having T.S No.21 some days earlier, which was readily agreed by PW1. But PW1 also deposed that there was no number for the shed at the time when the search and seizure was conducted. When questioned under Section 313 of Code of Criminal Procedure the definite stand of the petitioner was that he has nothing to do with that shop. He has no case that he was either a sales man or the manager of that toddy shop. Though petitioner suggested to the witnesses that it is the toddy shop No.21 run by Rangaswami the licensee, when PW1 as cross examined it was the petitioner who brought out from PW1 that petitioner is the sales man who is conducting the sale of toddy therein. Though PW1 deposed that he does not know whether petitioner is the owner of that shop, evidence of PW1 establishes that he was conducting the CRRP 434/02 7 sale. When this is appreciated in the light of the stand taken by the petitioner at the time of his examination under Section 313 of Code of Criminal Procedure, it can only be found that petitioner was running an unlicensed toddy shop in that temporary shop. 7. Then the question is whether the petitioner was having any license to run the shop or it was a licensed shop. It was petitioner himself who had summoned DW1 the Excise Commissioner and got produced Ext.D1, the relevant entry with regard to T.S.21/95-96 shop. Licensee is C.V Rangaswami, S/o.Vivekanandan. That licensed toddy shop is in the property of Mankuzhi Parameswara Panicker with the name Anchumanakkal Purayidam. Petitioner has no case that it is the temporary shed, from where contraband articles were seized. When DW1 was examined, what was CRRP 434/02 8 suggested to DW1 was that toddy shop for which license was granted to Rangaswami, was destroyed in flood and he had requested to shift that shed to another place. Evidently the contention is that this is the temporary shed so shifted. But DW1 deposed that there was no such shifted toddy shop. In any case, there is no case that permission was granted to Rangaswami to shift that shed or to shift any licensed shed to the place where the temporary shed was found by PW4. In such circumstances, I find no reason to interfere with the findings of the courts below that petitioner was running the temporary toddy shop, without a license from where PW4 seized the contraband articles. In such circumstances, findings of the courts below that petitioner committed the offence under Section 55(i) of the Abkari Act is perfectly legal. CRRP 434/02 9 8. Then the only question is regarding the sentence. Learned Magistrate sentenced the petitioner to rigorous imprisonment for six months and fine of Rs.1,000/-. Section 55(i) of Abkari Act originally provides for a sentence of imprisonment for a term which may extend to two years and fine which may extend to five thousand rupees. But by Abkari Amendment Act 12 of 1995, which came into force on 5/8/1995, sentence for the offence under Section 55(i) was enhanced to imprisonment, for a term which may extend to two years and fine which shall not be less than Rs.25,000/-. Learned Magistrate omitted to take note of the amendment to Section 55(i) and awarded a lesser fine when minimum fine of Rs.25,000/- is provided. Amendment Act came into force on 5/8/1995 and seizure was on 8/8/1995. But as prosecution did not challenge inadequacy of the CRRP 434/02 10 sentence, in a revision filed by the accused, the sentence cannot be enhanced. In such circumstances, I find no reason to interfere with the sentence also except providing that instead of rigorous imprisonment, simple imprisonment will be sufficient. Revision is disposed confirming the conviction and sentence but clarifying that substantive sentence is simple imprisonment for six months. Judicial First Class Magistrate, Ramankary is directed to execute the sentence. Petitioner is directed to appear before the Magistrate on 15/7/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.