IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 Crl.Rev.Pet.No. 1271 of 2001() ------------------------------ CRA.302/1998 of SESSIONS COURT, KOZHIKOE CC.300/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER(S): --------------------- PADMINI, W/O.VASU, MALAYIL, KIZHAKKUMURI P.O., PADINJATTUMURI AMSOM, KIZHAKKUMURI DESOM, KOZHIKKODE TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): --------------- 1. THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE KOZHIKKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J ---------------------------------- Crl.R.P.NO.1271 OF 2001 ----------------------------------- Dated this the 8th day of September, 2009. ORDER The petitioner is the accused in C.C.No.300/1996 on the file Court of the Judicial Magistrate of the First Class, Kunnamangalam. PW1, Excise Inspector, Chelannur prosecuted the revision petitioner with the allegation that she was found possessing 2 litres of illicit arrack in a 5 litre can, which was marked as MO1, at 2.30 p.m. on 21.8 1995. The offence was detected by PW1 while on patrol duty. The contraband article was seized by PW1 after preparing Ext.P1 mahazar wherein PWs 3 and 4 are attestors. From the illicit arrack 180 ml was taken as sample. When sent for chemical analysis, it was reported by Ext.P4 that the sample contained 26.41 percent by volume of ethyl alcohol. Consequently the complaint was filed. 2. The revision petitioner pleaded not guilty to the charge when the particulars of the offence was read over on her appearance in response to the summons. Hence she was sent for trial. On the side of the prosecution PWs 1 to 5 were examined and Ext.P1 to P4 and MO1 were marked. The defence of the accused is total denial. The learned Magistrate on appraisal of the evidence arrived a conclusion of guilt. Consequentially the revision petitioner was convicted for offence U/S.58 of the Abkari Act and sentenced to Simple Imprisonment for two months and fine of Rs.15,000/- with default clause to undergo Simple Imprisonment for one month. Crl.R.P.NO.1271 OF 2001 2 3. Assailing the above conviction, appeal as C.A.302/1998 was preferred before the Sessions Judge Kozhikkode. The learned Sessions Judge concurred with the conviction. Substantive sentence was reduced to simple imprisonment for one month. Assailing the legality, correctness and propriety of the conviction and sentence as modified in appeal, the revision petition was filed. Heard the learned counsel for the revision petitioner and the Public Prosecutor. The learned counsel for the revision petitioner took me through the evidence on record as well as the judgment impugned. The courts below had given reliance to the testimony of PW1 and correctly arrived a conclusion that the revision petitioner was found possessing two liters of illicit arrack. The learned counsel could not point out any illegality or error in appreciating the evidence. Hence, I find that the conviction under challenge is unassailable. 4. The offence alleged was committed on 21.8.1995 Section 58 of the Abkari Act, as then would read:- “ Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, shall on conviction before a Magistrate, be punished with fine which may extend to three thousand rupees, or with imprisonment for a term which may extend to six months, or with both.” Crl.R.P.NO.1271 OF 2001 3 Having gone through the impugned judgment it appears that the sentence was imposed as per the amended provision and not, as per the law then existing. The sentence that could be awarded is fine which may extend to Rs.3000/- or imprisonment which may extend to six months. Fine is the first option. Having due regard to the penal provision as on the date of the occurrence and on gender consideration , I find that the sentence awarded is beyond the then existing provision and I find that the maximum fine of Rs.3000/- would be just and proper. In the result, the revision petition is allowed in part. The conviction under challenge is confirmed. The sentence is reduced to fine of Rs.3000/-. In default of payment the revision petitioner shall undergo Simple Imprisonment for two months. The revision petitioner is given one month to pay the fine amount. P.S.GOPINATHAN,JUDGE. pm Crl.R.P.NO.1271 OF 2001 4