IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 3470 of 2008() ------------------------------ CRA.239/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA SC.237/2001 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED ---------------------------------------------- PARAMESWARAN,s/o.NEELAKANDAN, AGED 48 YEARS KAKKAMALAKUNNU MALAYIL VEEDU, THOTTAMOOLA SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.N.J.ANTONY RESPONDENT(S): RESPONDENTS/STATE --------------------------------------------- 1. EXCISE INSPECTOR, SULTHAN BATHERY RANGE WAYANAD DISTRICT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3470 OF 2008 =========================== Dated this the 28th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 55(g) of Abkari Act. Prosecution case is that on 18.1.2000 while PW2 the Excise Inspector and other Excise Guards on patrol duty reached Thottamala- Kakkamalakunnu area near the Panchayat well on the Kakkamalakunnu road at about 12.30 P.M, they saw petitioner walking with M.O.1 tin on his shoulder. Seeing the Excise party he put down MO1 tin and attempted to run away. Getting suspicious, PW2 stopped him and examined the contents of MO1 in the presence of witnesses. PW2 found 15 litres of wash meant for manufacturing liquor in that tin having a capacity of 18 litres. PW3 prepared a sample 500 ml.of wash in a 750 ml bottle and sealed the same and the remaining wash was destroyed . He prepared Ext.P1 seizure mahazar, a contemporaneous record. CRRP 3470/2008 2 Thereafter along with the petitioner the sample was also taken to the Excise Office and prepared Ext.P3 occurrence report and thereafter produced them before the court from where sample was sent for chemical analysis and obtained Ext.P7 report. After completing the investigation, charge sheet was laid before the Magistrate. Case was committed to Sessions Court and was made over to Assistant Sessions Court, Sulthanbathery. Petitioner pleaded not guilty when charge for the offence under section 55(g) of Abkari Act was read over and explained to him. Prosecution examined four witnesses and marked exhibits and identified M01. Though after closing the prosecution evidence and questioning the petitioner under section 313 of the Code of Criminal Procedure he was asked to called upon to adduce evidence, he did not adduce defence evidence. Learned Assistant Sessions Judge thereafter found him guilty. He was convicted and sentenced to rigorous imprisonment for two months and a fine of Rs.1 lakh and in default simple CRRP 3470/2008 3 imprisonment for six months for the offence under section 55(g) of the Abkari Act. Petitioner challenged the conviction before the Sessions Court, Kalpetta in Crl.A.239/2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but reduced the substantive sentence to rigorous imprisonment for one year. The fine was confirmed but the default sentence was reduced to three months. The conviction and sentence is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that courts below did not properly appreciate the evidence and fact that Ext.P6 scene mahazar was prepared only after one year from the date of alleged seizure was not properly appreciated. It was also argued that though PW1 was examined as an independent witness, he turned hostile and only PW2 and 3 the officials of Excise Department supported the prosecution CRRP 3470/2008 4 case and there were material contradictions in their evidence and courts below should not have accepted their evidence. It was argued that the scene mahazar was not prepared after identification of the scene of occurrence by an independent witness and evidence of Pws.2 and 3 mutually contradict each other as there were difference in the versions as to whether MO1 was carried on the left shoulder or right shoulder or petitioner was found on the right side or left side of the road. It was argued that in such circumstance, the conviction is not sustainable. Learned counsel finally argued that prosecution case itself is that petitioner was in possession of 15 litres of wash and in such circumstance, the sentence is harsh and considering the financial capacity of the petitioner it is not possible for him to pay the fine and therefore the sentence may be modified. 4. On hearing the learned counsel and on going through the judgments of the courts below, I cannot agree with the submission that appreciation of CRRP 3470/2008 5 evidence was perverse. True Ext.P6 scene mahazar was prepared only after lapse of more than one year from the date of seizure. But Ext.P1 the seizure mahazar prepared at the time of seizure, which is contemporaneous record is proved by the evidence of Pws.2 and 3, though PW1 the independent witness turned hostile. Though learned counsel highlighted the contradictions on the evidence of Pws.2 and 3 as to whether petitioner was found on the right side of the road or left side of the road or whether it was on the left shoulder or the right shoulder M01 was carried, I cannot agree with the argument that these contradictions go to the root of the case, as canvassed by the learned counsel. Learned Sessions Judge and learned Assistant Sessions Judge rightly appreciated the evidence and found that there is no material contradictions and there is no reason to disbelieve the evidence of Pws.2 and 3. Evidence of Pws.2 is corroborated by PW3 and they establish that petitioner was found carrying M01 tin on his shoulder and when examined, CRRP 3470/2008 6 M01 was found containing wash. Evidence also establish that sample was prepared from the wash and it was sealed in the presence of the petitioner and produced before court from where it was sent for chemical analysis. Ext.P7 establish that ethyl alcohol was detected in the sample received at the laboratory. In such circumstance, conviction of the petitioner for the offence under section 55(g) of Abkari Act is perfectly legal. 5. Then the question is with regard to the sentence. Sub section (1) of Section 55 of the Kerala Abkari Act provides for a sentence of imprisonment which may extent to 10 years and fine which shall not be less than Rs.1 lakh. Therefore substantive sentence is mandatory. Though minimum substantive sentence is not provided, maximum sentence provided is 10 years. But there is a minimum sentence of fine of Rs.1 lakh. Learned Sessions Judge modified the sentence to rigorous imprisonment for one year and a fine of Rs.1 lakh. In the circumstances of the case, it cannot be said CRRP 3470/2008 7 that the sentence warrant any interference. Learned counsel submitted that because of financial conditions petitioner will not be in a position to pay fine and therefore the default sentence may be reduced. Interest of justice will be met if the default sentence is reduced to simple imprisonment for one month. Petitioner is also entitled to get set off under section 428 of Code of Criminal Procedure. The revision is disposed confirming the conviction for the offence under section 55(g) of the Abkari Act. The sentence of rigorous imprisonment for one year and a fine of Rs.1 lakh is also confirmed. But the default sentence is reduced to simple imprisonment for one month. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006