IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Crl.Rev.Pet.No. 1964 of 2008() ------------------------------ CRA.313/2007 of III ADDL.SESSIONS COURT, KOLLAM ST.2708/2005 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... REVN. PETITIONER: --------------------------------- ABDUL KALAM, S/O.KASSIMKUNJU, SHAJI HOTEL, POST OFFICE JUNCTION, PUNALUR. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENTS: ------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. R.JAYAKUMAR, SECOND GRADE HEALTH INSPECTOR, PUNALUR MUNICIPALITY, PUNALUR. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.1964 of 2008 =================== Dated: 17.06..2008 O R D E R In this revision, the petitioner who is the accused in S.T.No.2708 of 2005 on the file of the J.F.C.M-III, Punalur for offences punishable under Sections.337,340 and 447 read with 511 of the Kerala Municipality Act, 1994, challenges the conviction entered and the sentence passed against him concurrently by the courts below. The accused has been sentenced pay a fine of Rs.500/- under section 337 read with Section 511 and the 4th Schedule of the Kerala Municipality Act and also sentenced to pay an amount of Rs.1,000/-under section 447 read with Section 511 and 4th schedule of the Kerala Municipality Act. With regard to the offence under Section 340 of the Kerala Municipality Act, he was acquitted. 2. The case of the complainant, who is a Second Grade Health Inspector in the Punalur Municipality can be summarised as follows:- The accused is conducting a hotel in a building bearing Crl.R.P.No.1964/2008 -:2:- No.PMC 10/200 in the name and style of “Shaji Hotel” near Punalur Post Office in the Market ward of Punalur Municipality. The accused has been allowing the flow of filthy water from the drain provided to the said hotel. The above act of the accused is in gross violation of the conditions of the licence given to the hotel and is causing nuisance and hardship to the nearby traders and the passengers at large. It also causes stink and poses a great health hazard to the public. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined two witnesses as P.Ws 1 and 2 and got marked 9 documents as Exts. P1 to P9 . 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. Crl.R.P.No.1964/2008 -:3:- 5. The learned Magistrate, after trial, as per judgment dated 27.4.07 acquitted the revision petitioner of the offence punishable under Section 340 of the Kerala Municipality Act and convicted him of the other two offences for which the punishment was only fine as indicated above. On appeal preferred by the revision petitioner before the Addl. Sessions Court, Kollam, the lower appellate court as per judgment dated 5.01.08 acquitted the revision petitioner of the offences punishable under Section 340 Kerala Municipality Act, but confirmed the conviction entered and the sentence passed against the revision petitioner for the other offence. Hence, this Revision. 6. The learned counsel for the revision petitioner contended that Ext.P2 spot mahazar which was the basic document relied on by the prosecution, allegedly prepared by PW1, Jayakumar, Second Grade Health Inspector, Punalur Municipality was really not the Mahazar evidencing personal inspection by PW1. The recital in Ext.P2 mahazar will show that the inspection was conducted by one Anas who was examined as PW2. Hence the courts below went wrong in relying on Ext.P2 to hold that the spot inspection conducted by PW1 revealed the Crl.R.P.No.1964/2008 -:4:- offences committed by the revision petitioner. 7. I cannot agree. A perusal of Ext.P2 Mahazar shows that it was Anaz the junior Health Inspector, who was examined as PW2, who initially conducted an inspection and found that the petitioner was discharging filthy water into the public road. The Mahazar proceeds to say that, thereafter a fine was imposed on the petitioner, the petitioner obtained a stay of recovery of the fine in a writ petition filed before this Court and that, even thereafter, the petitioner was continuing with the act of discharging filthy water into the public road contrary to the conditions imposed by this Court in the said writ petition. This is an observation made by the author of the Mahazar namely PW1, Jayakumar. Moreover, Anaz, the Junior Health Inspector is also a witness to the said Mahazar. Hence it cannot be said that the reliance placed on Ext.P2 Mahazar was not justified. The conviction was recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. If at all the courts below had erred, that was on the side of leniency in not Crl.R.P.No.1964/2008 -:5:- awarding a sentence of imprisonment on the revision petitioner. However, I refrain from taking further action in the matter in the hope that the petitioner will not continue to contaminate the public road and nearby places by draining filthy water. This Crl.R.P. is dismissed. V.Ramkumar, Judge. sj