IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3704 OF 2007() ------------------------------ CRA.377/2007 of ADDL. SESSIONS COURT, ALAPPUZHA SC.757/2005 of ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------ NATARAJAN, C.NO.1590, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.LIJU. M.P(STATE BRIEF) RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3704 OF 2007 ------------------------------------------ Dated this the 28th day of November, 2008 O R D E R Revision petitioner was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.1,00,000/- and in default simple imprisonment for six months for the offence under section 8(1) and 8(2) of Abkari Act by Assistant Sessions Judge, Alappuzha in S.C.757 of 2005. Though conviction was challenged before Sessions Court, Alappuzha in Crl.Appeal 377 of 2007, learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision preferred from jail. Advocate Mr. Liju M.P. was appointed the counsel to argue for the revision petitioner. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for revision petitioner submitted that prosecution case is that revision petitioner was transporting 1½ litres of arrack on 17.11.2003 and there is no acceptable evidence and evidence was not properly appreciated CRRP3704/07 2 and the evidence is insufficient to convict the petitioner and even if the conviction is to be confirmed, the sentence awarded is excessive. It was argued that as per the evidence the quantity of arrack was only 1.300 litres and in such circumstances rigorous imprisonment for two years and a fine of Rs.1,00,000/- is excessive and it is to be reduced. 3. Learned Public Prosecutor submitted that the Courts below appreciated the evidence properly and there is no reason to interfere with conviction and sentence. 4. Though PWs 2 and 3 the independent witnesses turned hostile to the prosecution, learned Assistant Sessions Judge and the learned Sessions Judge relied on the evidence of PW4, the Excise Inspector, and PW1 the Preventive Officer corroborated by Ext.P1 seizure mahazar, the contemporaneous record prepared at the scene of seizure and arrest to hold that petitioner was transporting spirit and thereby committed offence punishable under section 8(1) and 8(2) of Abkari Act. On going through the judgments of Courts below, I do not find any reason to interfere with the factual findings. Evidence of PWs 1 and 4, which are mutually corroborating, establish that while they were proceeding through Nangyarkulangara-Thrikkunnapuzha public CRRP3704/07 3 road they found revision petitioner at S.N. Kavala and seeing them revision petitioner attempted to escape and PWs 1 and 4 apprehended him and revision petitioner was then found holding MO1 Can containing 1.300 litres of arrack. There is no reason to disbelieve the evidence of PWs 1 and 4 which is also corroborated by Ext.P1 the contemporaneous record prepared then and there. Evidence also establish that petitioner was arrested, MO1 Can containing the arrack was seized and revision petitioner with the seized articles were produced before the Court. On the report it was sent for chemical analysis. Ext.P6 report establish that MO1 Can contained ethyl alcohol. In the light of the evidence, conviction of the petitioner for the offence under section 8(1) and (2) of Abkari Act is perfectly legal. 5. Then the only question is regarding the sentence. Sub section (2) of section 8 of Abkari Act provides for a sentence of imprisonment which may extend to 10 years and fine which shall not be less than Rs.1,00,000/-. Therefore with regard to the fine, there is no option to the Court as the minimum fine provided is Rs.1,00,000/-. The petitioner was found in possession of only 1.300 litres of arrack. There is no case that CRRP3704/07 4 petitioner was involved in any other offence earlier. In such circumstances interest of justice will be met if the sentence is modified to rigorous imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for three months. Revision is allowed in part. Conviction of the petitioner for the offence under section 8(1) and 8(2) of Abkari Act is confirmed. Sentence is modified. Petitioner is sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for three months. Petitioner is entitled to the set off under section 428 of Code of Criminal Procedure for the period he was in custody before and during trial. M. SASIDHARAN NAMBIAR, JUDGE Okb/-