IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.Rev.Pet.No. 813 of 2008() ----------------------------- CRA.87/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA SC.119/2000 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER: APPELLANT ---------------------------------------------------- KRISHNAN,S/O. KUNHIRAMAN THEKKUMPATH HOUSE, KALLOOR,SULTHANBATHERY. BY ADV. SRI.S.M.PRASANTH RESPONDENTS: COMPLAINANT ------------------------------------------------------ THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No. 813 of 2008 =================== Dated: 20.06.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the accused in S.C. No.119 of 2000 on the file of the Assistant Sessions Judge, Sulthanbathery for an offence punishable under Section 55(a) of the Kerala Abkari Act, challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. Heard both sides. 3. The case of the prosecution is that at about 6.15 p.m. on 28.4.1999, the revision petitioner was found carrying 5 litres of arrack in a 10 litre Jerry can at Noolpuzha village and he has thereby committed an offence punishable under Section 55(a) of the Kerala Abkari Act. 4. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 Crl.R.P.No.813 of 2008 -:2:- witnesses as P.Ws 1 to 6 and got marked 8 documents as Exts. P1 to P8 and one jerry can as MO1. 5. 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. 6. The learned Assistant Sessions Judge, after trial, as per judgment dated 24.03.2006 found the revision petitioner guilty of the offence under Section 55(a) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and on default to pay the fine to suffer simple imprisonment for six months. 7. On appeal preferred by the revision petitioner before the Court of Additional Sessions Judge ( Ad hoc II), Kalpetta, the lower appellate court as per judgment dated 30.11.2007 confirmed the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. Crl.R.P.No.813 of 2008 -:3:- 8. Eventhough the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been 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. 9. PW1 is the Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad. PW5 is the Circle Inspector of Kalpetta Excise Enforcement and Anti Narcotic Special Squad, who detected the offence. He, along with his patrolling party consisting of PW1, while patrolling along the road in front of a tiller shed near tribal hostel at Thekkumpatta area of Sulthanbathery, chanced to come across the revision petitioner with a jerry can of 10 litres capacity in his hand. Getting suspicious, the said party restrained the petitioner and conducted search of the contents of the jerry can in his possession and found that it was containing 5 litres of arrack. He took sample of the liquid from the spot itself. After packing and sealing the Crl.R.P.No.813 of 2008 -:4:- sample bottle as well as the balance contents in the jerry can, PW5 seized them under Ext.P1 Seizure Mahazar. The accused was arrested and taken to the Excise Office from where Ext.P6 Crime and occurrence report was prepared. The seized jerry can and sample bottle were produced before the committal magistrate on 3.5.1999. The sample bottle was, at that time, in the sealed condition. Thereafter during the course of investigation, PW6 the Excise Inspector submitted Ext.P4, forwarding note on the strength of which the committal court forwarded the sample bottle for chemical examination. As per Ext.P8, the sample bottle which was received in a tamper proof condition with the seal intact was found to contain 35.49 litres by volume of Ethyl alcohol. The sample was despatched by the committal court as per covering letter dated 3.5.1999 without any delay. 10. Such being the evidence before court, I do not find any good ground to interfere with the orders of the courts below. Accordingly, the conviction recorded is confirmed. 11. What now survives for consideration is the question Crl.R.P.No.813 of 2008 -:5:- regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the fact that the revision petitioner is not a previous offender and the occurrence was way back on 28.5.1999, I am inclined to reduce the rigorous imprisonment to one year. In all other aspects, sentence imposed on the revision petitioner is confirmed. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 20 th day of June, 2008 V.Ramkumar, Judge. sj