IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 126 of 2001(A) ------------------------------------------ CRL.A.NO.218/1998 OF ADDL.SESSIONS COURT, KOZHIKODE, CC.NO.858/1996 OF JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY. .................... REVISION PETITIONER/ ACCUSED: -------------------------------------------------- REMANI, W/O. KARUNAN, AGED 37 YEARS, UNNIKULAM AMSOM, DESOM, KOYILANDY. BY ADVS. MR.C.P.CHANDRASEKHARAN (CALICUT), MR.M.SHAJU PURUSHOTHAMAN. RESPONDENT: ---------------------- STATE, REPRESENTED BY EXCISE INSPECTOR, BALUSSERY. BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 126/2001-A: ORDER ON CRL.M.P. NO. 533/2001 IN CRL.R.P. NO. 126/2001-A DISMISSED 02/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.126 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November , 2009 ORDER Revision petitioner is the accused in C.C.No.858/1996 of Judicial First Class Magistrate Court, Koyilandy and appellant in Crl.Appeal No.218/1998 of Ist Additional Sessions Court, Kozhikode. He was convicted under Section 58 of Abkari Act and was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1000/-, in default, to undergo simple imprisonment for 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 August 21, 1995 at about 5.30 pm, he was found in possession of 3 litres of illicit arrack in a lane from Kalluvettupalam Thalakkal to Nadappara mukku in Unnikulam amsom and that thereby committed the offence punishable under Section 58 of Abkair Act. 3. On appearance before the trial court, the accused pleaded Crl.R.P.No.126/01 Page numbers not guilty to a charge under Section 58 of Abkari Act. PWs 1 to 4 were examined and Exts.P1 to P3 were marked and MO1 was produced on the side of prosecution before the trial court. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 58 of Abkari Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P.No.126/01 Page numbers Point No.1 6. PWs 1 to 4 were examined and Exts.P1 to P3 were marked on the side of prosecution. PW1 is the Excise Inspector , Balussery Range who laid the charge. PWs 2 and 3 are independent witnesses to the incident who turned hostile and did not support the prosecution. PW4 is the Preventive Officer attached to Enforcement and Anti Narcotic Special Squade. He testified that on August 21, 1995, while he was conducting petrol duty at Unnikulam along with Excise Guards, he found the accused in a lane from Kalluvottupalam Thalakkal to Nadapuram mukku carrying 3 litres of illicit arrack in a 10 litre can at about 5.30 pm. Ext.P3 is the mahazer prepared by PW4 from the spot. I have gone through the evidence of PW4. Nothing was brought out during his cross examination to discredit his evidence. He has absolutely no enmity towards the accused person. Therefore, in my view, though PWs 2 and 3 independent witnesses turned hostile, both the courts below are justified in believing the evidence of PW4. No other point is argued before me. For all these reasons, accepting the evidence of prosecution, I am inclined to confirm the conviction of the Crl.R.P.No.126/01 Page numbers revision petitioner rendered by the trial court which is confirmed in appeal. Point No.2 7. As regards the sentence, the trial court imposed a sentence of simple imprisonment for two months and a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for a further period of one month which is confirmed in appeal. Taking into consideration of the fact that the incident occurred in 1995, accused is a lady, that the quantity of illicit arrack found in possession of the accused was only 3 litres and that during that period arrack was not banned, I feel that a fine of Rs. 15,000/- and imprisonment till the rising of court would meet the ends of justice. In the result, Criminal Revision Petition is allowed in part. Conviction of the revision petitioner under Section 58 of Abkari Act is confirmed. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for three months. The accused shall appear before the trial court on or before Crl.R.P.No.126/01 Page numbers 30-11-2009 to receive the sentence. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.126/01 Page numbers