IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 Crl.Rev.Pet.No. 1685 of 2002() ------------------------------------------- CRA.264/1997 of ADDL.SESSIONS COURT, THALASSERY CC.374/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- VELERI CHANDU, AGED 37 YEARS, S/O. KUNGAN POYYAMALA, KELAKAM P.O., THALASSERY TALUK. BY ADV. SRI.P.V.MOHANAN, SRI.B.HARISH KUMAR. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.1685 of 2002. = = = = = = = = = = = = = Dated this the 5th day of April, 2010. O R D E R On 18.8.1995 at 11.30 am., while, Pw1, a Preventive Officer attached to the Peravoor Excise Range along with Pw5, an Excise Guard moving on patrol duty found the revision petitioner stirring some liquid in a tin, which was marked as MO1, with his hand near a basement in the property belonging to Rapuzha Johny. Seeing Pw1 and the excise party, the revision petitioner got perplexed and attempted to run away. He was intercepted and the liquid contained in MO1 tin was tested by smell and taste and having convinced that the liquid was wash prepared for illicit distillation, the same was seized on the strength of Ext.P1 mahazar, wherein,Pws.2 and 3, two independent witnesses are attestors. The revision petitioner was arrested then and there. Along with the material object seized, he was produced before the Excise Inspector, Crl.R.P.No.1685 of 2002. -: 2 :- Peravoor. The Excise Inspector registered a case by Ext.P3 occurrence report. The revision petitioner was released on bail after having obtained Ext.P2 bail bond executed. The sample of liquid seized was sent to the Chemical Examiner along with Ext.P4 request and obtained Ext.P5 report of the Chemical Examiner. In Ext.P5 it was reported that the sample contained 10.21% by volume of ethyl alcohol. Hence the complaint as CC.No.374/1996 was filed against the revision petitioner before the Judicial Magistrate of the First Class, Kuthuparamba alleging offence under Sec.55(g) of the Abkari Act. 2. The revision petitioner pleaded not guilty. Hence he was sent for trial. On the side of the prosecution Pws.1 to 5 were examined, Exts.P1 to P5 and Mo.1 were marked. The revision petitioner took up a defence of total denial. Further, he had advanced a contention that one of his relatives by name Chandu, who is a police constable, was on bitter terms with him regarding a property dispute and at his instance the case was falsely foisted against him. Crl.R.P.No.1685 of 2002. -: 3 :- However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, the revision petitioner was convicted for offence under Section 55(g) of the Abkari Act and sentenced to rigorous imprisonment for nine months and a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for a further period of six months. 3. Feeling aggrieved, the revision petitioner filed Crl.Appeal No.264/1997 before the Sessions Judge, Thalassery. The Addl.Sessions Judge (Adhoc-II), Thalassery, to whom the appeal was made over, by judgment dated 24.9.2002 confirmed the conviction. Taking note that the revision petitioner belongs to Scheduled Tribe and an illiterate man, then aged 37 years, reduced the substantial sentence to rigorous imprisonment for six months. The fine imposed was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. Crl.R.P.No.1685 of 2002. -: 4 :- 4. The learned Govt.Pleader and the learned counsel for the revision petitioner were heard. Pw1, the Preventive Officer had given evidence that while he moving on patrol duty on 18.8.1995 at 11.30 am., the revision petitioner was found stirring with hand 18 litres of wash kept in MO1 tin. His evidence was corroborated by the evidence of Pw5, the Excise Guard and Ext.P1 mahazar. Though Pws.2 and 3 had admitted the signature in Ext.P1, they didn't support the seizure of the contraband or he stirring the wash. The courts below had, on appraisal of the evidence, arrived at a finding that the evidence of Pws.1 and 5 supported by Ext.P1 instil confidence. Pws.3 and 4, who are two independent witnesses, turned hostile. However, Pw3 had admitted the presence of the revision petitioner and both of them admitted their signatures in Ext.P1. Though Pw1 was subjected to a searching cross examination, no material was disclosed to disbelieve Pw1. There is little material to arrive at a conclusion that Pw1 was subjected to any Crl.R.P.No.1685 of 2002. -: 5 :- influence by the so called Chandu, a police constable who is a relative of the revision petitioner or that Pw1 was swayed by any extraneous consideration. So also, Pw5 was anyway motivated against the revision petitioner so as to falsely implicate him. The evidence of Pws.1 and 5 is further corroborated by Ext.P1, the attestation of which was admitted by Pws.2 and 3. Such being the evidence on record, I find that the courts below had correctly analysed the evidence of Pws.1 and 5 and rightly arrived at a finding of fact that their evidence instil confidence. 5. Pw1 had deposed that 300 ml. of contraband liquid was taken as sample. It was duly sealed, labelled and produced before the Excise Officer. Pw4, the then Excise Officer had deposed that the revision petitioner and the contraband articles were produced by Pw1, before his predecessor whose signature was identified by Pw4. Pw4 had further deposed that his predecessor had forwarded the sample to the Chemical Examiner along with Ext.P4 request Crl.R.P.No.1685 of 2002. -: 6 :- and obtained Ext.P5 report. Ext.P5 report would show that the sample contained 10.21% by volume of ethyl alcohol. Neither the identity of the sample was challenged nor the certificate was challenged by the revision petitioner. Hence, I find that the finding of the courts below that the revision petitioner was possessing contraband liquid deserves no interference. 6. The learned counsel for the revision petitioner submitted that the contraband was seized from a rubber estate belonging to Johny and that the revision petitioner was no way involved. The cross examination of Pw1 would show that there is no suggestion to Pw1 that any person other than the revision petitioner was stirring the wash. The evidence of Pw1 that the revision petitioner was stirring the seized liquid with his hands could not be shaken in cross examination. Presence of the revision petitioner was even spoken by Pw3, though he didn't support the seizure of the contraband from the revision petitioner. The revision Crl.R.P.No.1685 of 2002. -: 7 :- petitioner has no good explanation as to how he happened to be in the property of Johny when the contraband liquid was seized. The evidence of Pws.2 and 3 didn't show that Ext.P1 was signed by them in any manner other than what was deposed by Pws.1 and 5. In the above circumstance, the argument advanced by the learned counsel for the revision petitioner is devoid of any merit. I find that the conviction is based upon cogent evidence. 7. The learned counsel for the revision petitioner relying upon a decision reported in Santhosh v. State of Kerala (2007(2) KLT 27) argued that there is nothing to conclude that liquid was prepared for manufacture of arrack and it is on that reasoning the accused in that case was acquitted. It is a case in which the revision petitioner therein was found possessing some jaggery and kareenja patta. Those materials were alleged to be intended for the purpose of manufacturing liquor. It is not disputed that those articles could be used for various other purposes. Crl.R.P.No.1685 of 2002. -: 8 :- Here, in this case, the revision petitioner was found possessing wash. There is no case that the wash seized could be used for any purpose other than distillation. There is no suggestion to Pws.1 to 5 that wash could be used for any purpose other than illicit distillation. Such being the materials on record, the ruling in the decision cited by the learned counsel has no bearing with the facts of this case. 8. The learned counsel for the revision petitioner submitted that the revision petitioner belongs to Scheduled Caste and in that circumstance he is entitled to very lenient sentence. The lower appellate court had reduced the substantive sentence on consideration that the revision petitioner belongs to Scheduled Caste. I find that any more leniency is not at all warranted especially taking into account of the nature of the offence. The sentence awarded by the lower court is neither harsh nor disproportionate so as to interfere with in exercise of the revisional powers vested on this court. The revision petition is devoid of any Crl.R.P.No.1685 of 2002. -: 9 :- merit. It is accordingly dismissed. The revision petitioner shall surrender before the trial court for execution of sentence. The trial court shall see execution of sentence and report compliance. P.S.GOPINATHAN (Judge) Kvs/-