IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 Crl.Rev.Pet.No. 276 of 2002() ----------------------------- AGAINST THE JUDGMENT IN C.C. 1314/96 OF J.F.C.M., VAKDAKARA CRL.A. NO.239/99 OF THE SESSIONS COURT, KOZHIKODE REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.C.KANARAN S/O.POKKAN, PONNARATRHUMMALTHAMASSIKKUM ARUKURUNGOTT, THIRUVALLOOR AMSOM,DESOM,VADAKARA TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. EXCISE INSPECTOR,VADAKARA EXCISE RANGE, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. R. BINDU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON 25.3.2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 276 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2009 O R D E R The revision petitioner is the accused in C.C. No. 1314 of 1996 on the file of the Judicial First Class Magistrate, Vadakara. The above case was filed by the first respondent herein against the petitioner, alleging the offence punishable under Section 58 of the Kerala Abkari Act (for short 'the Act'). 2. The prosecution case is as follows. PW4 is the Preventive Officer attached to the Vadakara Excise Range Office. According to him, on 13.9.1995, while he was patrolling around Thiruvalloor amson and desom along with other Excise officials, he reached the Panchayat road situated on the east of the house belonged to one Niravil Chathu. At that time the accused was seen coming carrying a can in his hand. The accused was seen from a distance of 10 feet. On seeing the excise officials, the Crl.R.P.No. 276 of 2002 2 accused stood perplexed and it is in the said circumstances the Excise Officials stopped the accused and inspected the can found with him. It contained 4 litres of illicit arrack. So the accused was arrested and MO1 can was seized. 180 ml. was taken as sample and it was sealed. Necessary label containing the signature of the accused also was affixed on it. Ext.P1 is the mahazar prepared by him. 3. To substantiate the case, PWs. 1 to 4 were examined and Exts.P1 and P2 were marked on the side of the prosecution. MO1 can was also marked on the side of the prosecution. On going through the evidence and the documents, the trial court found the accused guilty, convicted him under Section 58 of the Act and sentenced him to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.15,000/- and in default to undergo S.I. for a period of 3 moths. 4. Aggrieved by the conviction and sentence, the petitioner filed Crl.A.No. 239 of 1999 before the Sessions Court, Kozhikode. The Sessions Court confirmed the conviction and Crl.R.P.No. 276 of 2002 3 sentence and dismissed the appeal. Against that judgment, the accused filed this Revision Petition. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 6. It is well settled principle of law that normally the jurisdiction of the High Court in revision has to be exercised only in exceptional cases when there was glaring defect in the procedure or there was manifest error on a point of law, which has consequently resulted in flagrant violation of miscarriage of justice. PW4 is the Preventive Officer attached to the Vadakara Excise Range Office. According to him, on 13.9.1995, while he was on patrol duty around Thiruvalloor amsom and desom along with other Excise officials, he reached the Panchayat road situated on the east of the house belonged to one Niravil Chathu. At that time the accused was seen coming carrying a can in his hand. He was seen from a distance of 10 feet. On seeing the excise officials, the accused stood perplexed and it is in the said circumstance that the excise officials stopped the accused and Crl.R.P.No. 276 of 2002 4 inspected the can found with him. It contained 4 litres of illicit arrack. So the accused was arrested and MO1 can was seized. 180 ml. was taken as sample and it was sealed. Necessary label containing the signature of the accused also was affixed on it. Ext.P1 is the mahazar prepared by him. 7. PWs. 1 and 2, who are independent witnesses to Ext.P1, turned hostile, though they admitted their signature in Ext.P1. PW3, Excise Inspector of Vadakara, swears that he registered the occurrence report on the basis of records and MOs. produced by PW4. PW3 produced the material objects before the Magistrate Court with the requisition for sending the sample for chemical analysis. Ext.P2 is the chemical analysis report, proved through examination of PW3. As per Ext.P2, ethyl alcohol was detected in the sample, which contained 24.16 percent by volume of ethyl alcohol. There is no impediment in law to convict the accused on the testimony of a single witness, if the court comes to the conclusion that his evidence is honest and trustworthy. When Crl.R.P.No. 276 of 2002 5 the evidence of the Excise Officials inspires confidence, it is open to the court to accept their uncorroborated testimony. 8. The learned counsel for the petitioner submitted that the lower court ought to have found that to attract the offence under Section 58 of the Act, the knowledge about possession of illicit article is necessary and that the presumption under Section 64 of the Act was not available to the prosecution at the time of occurrence. That argument has no force, as when the possession of illicit arrack is established, the accused, who claims that it was not conscious possession, has to establish it, because how he came to be in possession of it is within his knowledge. Since the testimony of PW4 with regard to arrest and recovery of illicit arrack is reliable, the trial court and the appellate court are perfectly justified in convicting the accused under Section 58 of the Act. The learned Magistrate has imposed only a reasonable sentence. Considering the facts and circumstances of the case and the gravity of the offence, there is no reason to interfere with the sentence also. In view of the above aspects of the matter, the Crl.R.P.No. 276 of 2002 6 trial court and the appellate court have not committed any error on facts or law in convicting and sentencing the accused. I find no reason to interfere with their concurrent findings. 9. In the result, this Revision Petition is dismissed, as it is without any merits. The Judicial Magistrate of First Class, Vadakara is directed to execute the sentence. (M.L. JOSEPH FRANCIS) Judge tm