IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 2309 of 2011() -------------------------------------------- CRA.415/2005 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA SC.337/2001 OF ASSISTANT SESSIONS COURT, MAVELIKKARA .................... REVISION PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------- RAGHAVAN, VANCHIPPUZHAYETHU COLONY, THIRUVANVANDOOR. BY ADV. SRI.S.MOHANAN RESPONDENT/RESPONDENT/STATE ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHENGANNUR , THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY PUBLIC PROSECUTOR MR.T.R. RAJESH. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON 02/12/2011 PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2309 OF 2011 ----------------------------------------- Dated this the 2nd day of December 2011 ORDER Challenge in the revision is against the conviction of the accused for the offences under Section 55(a)&(i) of the Kerala Abkari Act (for short, 'the Act'), concurrently by the two courts below. Sentence imposed against the accused is rigorous imprisonment for three years and fine of `.1,00,000/- with default term of rigorous imprisonment for six months more. Feeling aggrieved, he has filed this revision. 2. Prosecution case is that in a search conducted over the residential building of the accused, bearing door No.157 in Ward No.VIII of Thiruvanvandoor panchayat in Vanchipuzhayethu colony, by the excise party headed by the Excise Inspector, Excise Range Office, Chengannur (PW1), at about 12: 15 noon on 22-01-1999, 70 litres of concentrated arrack kept in two plastic cannas, each containing 35 litres, for the purpose of sale, was seized into custody, and the accused was arrested from the spot. Preliminary investigation after registering of crime and occurrence report under Ext.P5 was carried out by the detecting officer (PW1) and, later, completing the investigation, his successor in office (PW2) laid the report indicting the accused of the offence under Section 55(a)&(i) of the Act. The accused pleaded not Crl. R.P No.2309 OF 2011 2 guilty to the offence. Prosecution examined PW1 to PW4, got marked Exts.P1 to P8 and identified MO1 to MO3 series to prove its case. The accused denied the incriminating circumstance appearing in the prosecution evidence when questioned under Section 313 of the Code of Criminal Procedure and, examined one witness on behalf of DW1 to contend that he was arrested few days before from a different place by the police. The learned Assistant Sessions Judge, on the materials placed, found the accused guilty of the offences imputed and he was thereupon convicted and sentenced as stated supra. The learned sessions Judge turned down his appeal affirming his conviction and sentence without any modification. 3. I heard the learned counsel for the petitioner/accused and also the learned Public Prosecutor. Other than the evidence of the excise officials, no independent evidence was let in by the prosecution to prove the seizure of the contraband as alleged and, further, such search and seizure were against the provisions of the Act and as such not acceptable, is the submission of the counsel for the accused. Ownership of the building, from which the contraband was seized or its possession with the accused has not been established in the case, is the further submission of the counsel to contend that the prosecution Crl. R.P No.2309 OF 2011 3 case suffers from serious infirmity by the lack of such crucial evidence. Other pleas canvassed before the court below to impeach the prosecution case that the analysis report shown that the sample taken from the contraband seized was found to be rectified spirit whereas the case of the prosecution was that the contraband is arrack, was also canvassed as a material discrepancy discrediting the case of the prosecution as a whole, and to assail the conviction of the accused. I do not find any merit in the challenges raised by the counsel after going through the judgments rendered by the two courts below. Search was conducted in the presence of two independent witnesses and they subscribed their signature in Ext.P4 mahazar as attesters. One of them, when the trial commenced, was no more and the other had left to a far off State in connection with employment. Nonexamination of the attesters in Ext.P4 mahazar was under the aforesaid circumstance and, further, the evidence of PW1 and PW2, the Excise Inspector and the Excise Guard respectively, who were involved in the seizure of the contraband, was found reliable, trustworthy and convincing to accept the prosecution case over the substance seizure of the contraband. No infirmity rendering the evidence of PW1 and 2 unworthy of merit and incapable of reliance Crl. R.P No.2309 OF 2011 4 had been brought to my notice. PW4, the Secretary of the Panchayat, proved Ext.P11, copy of the extract from the register maintained in the Panchayat, that the building from which the contraband was seized was owned by the accused. The learned Assistant Sessions Judge has also taken note that the accused has also shown the same address even in his application moved for enlarging on bail, over and above finding that the evidence of PW1 and PW2 clinchingly established that search and seizure of the contraband was effected in the presence of the accused form his residential building. In the context, it is also to be noted that the accused who did not raise any specific defence when questioned under Section 313 of the Code of Criminal Procedure has examined one witness on his behalf as DW1. That witness was examined to show that he was arrested by the police two weeks before at a different spot where both of them worked together as masons in the construction of a building. He was falsely implicated in the case appears to have been the defence projected by the accused by examining the above witness. DW1 gave evidence that the accused was arrested by the police on 02-01-1999. He further sated that the accused came back to the work place after one month. The excise party arrested him in the present case on 22-01-1999 and after his Crl. R.P No.2309 OF 2011 5 arrest he remained in custody for one month till released on bail was also taken note by the trial judge to hold that the evidence of PW1 was unworthy of any merit. Where the prosecution materials tendered proved the culpability of the accused, the defence plea taken by the accused was shown to be false by the evidence let in. In the report laid against him, contraband was shown as concentrated arrack, and, analysis report, Ext.P9, over the sample analysed stated it to be spirit, which too was canvassed as a material discrepancy affecting the merit of the prosecution case has no basis at all. Ext.P9 analysis report showed that the sample collected from the contraband contained 94.75% by volume of ethyl alcohol. PW3, the Excise Inspector, who laid the report has stated that arrack having more than 44% by volume of ethyl alcohol is termed as concentrated arrack, which is nothing, but, spirit as defined under the Abkari Act. Whether the contraband seized from the accused is arrack or spirit is not material when both come within the definition of liquor as under Section 3(X) of the Act to sustain the offences. There is no merit in any of the challenges raised by the counsel to assail the conviction concurrently rendered against him by the two courts below. Crl. R.P No.2309 OF 2011 6 4. The learned counsel for the petitioner/accused has pleaded for modification of the sentence imposed against him contending it is excessive and unreasonable. In fact, on the allegations imputed and proved by the prosecution in the case, the offence that has been established against the accused is under Section 55(i) of the Act. Storage of the contraband seized in the case was from his house and it was kept for sale, and, thus, an offence under Section 55(i) of the Act. Is it proper, then, to found a conviction against him for Section 55(a) of the Act on the premise that the storage amounted to possession by the accused. Where the offences under Section 55(a)/&(i) contemplate of two distinct offences, storage of the contraband for sale in his building without anything more showing import and export of such contraband by the accused would not constitute the offence under Section 55(a) of the Act, but, only under Section 55(i) of the Act. In the given facts of the case, that would not make any difference, where the conviction of the accused under Section 55(i) of the Act has been found to be unassailable, in which both the courts below after convicting him for both offences under Section 55(a)&(i) of the Act have not passed sentence separately for such offences. In such circumstances, no further order with reference Crl. R.P No.2309 OF 2011 7 to the offence under Section 55(a) of the Act, other than the observations made as above, is warranted. 5. The accused is shown to be aged 58 years when he was convicted and sentenced by the trial judge. Considering his age as of now, sentence imposed against him is modified and reduced to rigorous imprisonment for two years retaining the fine of `1,00,000/- with default term of rigorous imprisonment for six months for the offence under Section 55(i) of the Act. Revision is disposed as indicated above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge