IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 Crl.Rev.Pet.No. 3290 of 2007() ------------------------------ CRA.43/2005 of SESSIONS COURT, KALPETTA SC.258/2000 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- RAJU VARGHESE,S/O. VARGHESE, VALUPARAMBIL, KOTTATHARA, VYTHIRI. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: COMPLAINANT ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 3290 of 2007 ========================== Dated this the 5th day of June, 2008. ORDER The revision petitioner, who was the accused in S.C. No. 258 of 2000 on the file of the Assistant Sessions Court, Sulthanbathery, challenges the conviction entered and the sentence passed against him concurrently by the courts below for an offence punishable under Section 55(a) of the Abkari Act. 2. The case of the prosecution can be summarised as follows:- On 23.12.1997, at about 10.30 p.m, the revision petitioner was found in possession of 2.5 liters of country made arrack in a 5 liter can, kept under the slab of the kitchen of the residential house bearing No. VII/113 in Kottathara Panchayath. The revision petitioner was arrested and the illicit liquor was seized under a mahazar. Sample taken from the liquour was found to contain illicit arrack. The accused has thereby committed offences punishable under Sections 55(a) and 58 of the Abkari Act. CRL.R.P.NO. 3290/2007 : 2: 3. On the side of the prosecution, 6 witnesses were examined as PWs 1 to 6 and 10 documents were got marked as Exts. P1 to P10 and a black can was marked as MO1. 4. After the close of the prosecution evidence, the accused was questioned under Section 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. 5. The trial Judge did not consider this to be a fit case for recording an acquittal under Section 232 Cr.P.C. The accused was, therefore, called upon to enter on his defence evidence to adduce any evidence which he might have in support thereof. The accused examined the Secretary of the Panchayat as DW1 and got marked Ext.D1 identity card. 6. The learned Assistant Sessions Judge after trail, as per judgment dated 10.01.2005 found the revision petitioner guilty of the offence and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and on default to pay the fine, to suffer rigorous imprisonment for six months. Even CRL.R.P.NO. 3290/2007 : 3: though the revision petitioner preferred an appeal before the Sessions Court, Wayanad as Crl. Appeal No. 43 of 2005, as per judgment dated 26.05.2007, the learned Sessions Judge dismissed the appeal confirming the conviction under Section 55 (a) of the Abkari Act but reducing the rigorous imprisonment to one year without altering the sentence of fine. He was, however, acquitted of the offence punishable under Section 58 of the Abkari Act. Hence this revision. 7. Even though the learned counsel appearing for the revision petitioner assailed on various grounds the conviction recorded against the revision petitioner, in as much as the courts below have recorded the conviction after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loath to interfere with the said conviction. The petitioner's contention that there has been 9 days delay in producing the property before the court, has been considered by the courts below which have accepted the explanation offered by the detecting officer. Samples taken from the contraband arrack were produced before the court in a tamper proof condition as CRL.R.P.NO. 3290/2007 : 4: revealed by Ext.P2 property list. Subsequently, responding to Ext.P6 forwarding note, the committal Magistrate had forwarded the sample to the chemical examiner who as per Ext.P10 certificate of analysis has confirmed that the sample in question was illicit arrack since it conforms to the definition of arrack under the Abkari Act. The ownership of the house in question was irrelevant since the accused was physically found in the house and he had absolutely no explanation for his presence in the said house. With effect from 03.06.1997, possession, sale, import, transport etc. of arrack has been totally banned in the State. Hence the revision petitioner who was found in possession of 2.5 liters of illicit arrack on 23.12.1997 was rightly found guilty of the offence punishable under Section 55(a) of the Abkari Act. His conviction is accordingly confirmed. 8. The sentence imposed on the revision petitioner also cannot be said to be harsh or disproportionately excessive, having regard to the fact that this killer brew has ruined several families. Penal servitude by way of rigorous incarceration alone can serve as an adequate disincentive for such offenders. I do not CRL.R.P.NO. 3290/2007 : 5: find any good ground to interfere with the sentence as well. The result of the foregoing decision is that this revision is devoid of any merit and accordingly dismissed confirming the conviction entered and the sentence passed against the revision petitioner. V. RAMKUMAR, JUDGE. rv CRL.R.P.NO. 3290/2007 : 6: