IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 24TH APRIL 2009 / 4TH VAISAKHA 1931 Crl.Rev.Pet.No. 43 of 2002() ---------------------------- CRA.257/1999 of SESSIONS COURT, KOZHIKODE CC.298/1996 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: ---------------------------------------------------------------------------- P.M.SATHEESAN, S/O.NANU, AGED 41 YEARS, PALLIMADATHIL HOUSE, VADAKARA AMSOM DESOM, PAZHAYANKAVU, KOZHIKODE. BY ADV. MR.S.U.NAZAR RESPONDENT(S): /RESPONDENT:COMPLAINANT: --------------------------------------------------------------------------- SUB INSPECTOR OF POLICE, PAYYOLI POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON 24/04/2009 PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.266/2002 IN CRRP.NO.43/2002 DISMISSED 24/04/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.43 OF 2002 () ----------------------------------- Dated this the 24th day of April, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 55 (a) of the Kerala Abkari Act and Rule 9 of the Foreign Liquor Rules. The learned Magistrate, after trial, found him guilty and convicted him of the offence, sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- with default term of simple imprisonment for three months more. In appeal, the Sessions Judge confirmed the conviction and also the sentence without any modification. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision. 2. The prosecution case in brief, is that the accused was CRL.R.P.43/02 2 apprehended with 7 bottles of Indian made foreign liquor as kept in a bag without authority, by a police party on the evening of 21.8.1996 at a spot beside the residential building of one Janu, stated to be his mother-in-law. After investigation of the crime, charge was laid against the accused for the offence under Section 55 (a) of the Abkari Act. 3. The accused had pleaded not guilty to the offence when the charges were made known and the prosecution thereupon examined PWs.1 to 9, got marked Exts.P1 to P6 and identified MO1 series and MO2 to prove his case. 4. The accused, maintained his innocence when questioned under Section 313 of Cr.P.C. He examined one witness as DW1, setting up a plea of alibi that he was at a different place on the relevant date and time when the seizure of the contraband was allegedly made by the police party. The learned Magistrate, after appreciating the materials produced, found the accused guilty and he was convicted and sentenced as indicated earlier, which was confirmed by the Sessions CRL.R.P.43/02 3 Judge, without any modification. 5. I heard the learned counsel for the accused and also the learned Public Prosecutor. The learned counsel for the accused assailed the conviction as unsustainable under law and facts, mainly, on two grounds: (i) there is material discrepancy and contradiction in the prosecution evidence as regards the place from where the seizure of the contraband was made allegedly from the possession of the accused and (ii) the trial of the case was vitiated as no enquiry under Section 202 of Cr.P.C. was followed. In the event of the conviction is found sustainable, in the alternative, it is urged, the fine imposed against the accused is excessive and beyond the maximum sum that could be imposed by the Judicial First Class Magistrate, as covered by Section 29 of the Cr.P.C. 6. I have perused the records of the case with reference to the submissions made by the counsel. I do not find any merit in the submission of the counsel that there is serious contradiction or discrepancy regarding the place from where CRL.R.P.43/02 4 the accused was found in possession of contraband, as carried in a bag, and his apprehension by the police. Prosecution case is that pursuant to information received that the accused was engaged in the sale of illicit liquor, police party reached the spot, beside the house of one Janu, and, then, the accused was seen coming towards them from behind the house carrying a bag. The police party went over to him, examined the contents of the bag, which revealed 7 bottles of foreign liquor, for the possession of which he had no authority or licence. While such inspection was going on, the accused took to his heels and escaped from the scene, despite chased, the police party could not get hold of him. The apprehension of the accused and seizure of the contraband is deposed by PW3, the S.I. of police, PWs.4 and 5, the police constables and two independent witnesses, PWs.1 and 2. Both the courts below have found the evidence of the police officials and also the independent witness reliable, trustworthy and acceptable, and no circumstances whatsoever was shown to doubt the intrinsic worth of their sworn testimony before the court. The evidence tendered by the prosecution would show sample was collected CRL.R.P.43/02 5 from the contraband seized complying with the formalities and, later, the sample analysed at the Laboratory disclosed that it contained 41.81 percent by volume of ethyl alcohol. The evidence would further show that the building from where the accused was apprehended, belongs to his mother-in-law, one Janu, and he is residing in the same building. Discrepancy as regards the place where the accused was found with the contraband by the police party is highlighted with reference to the statement of some of the prosecution witnesses that he came out of the house, while others stated he came from behind that building, which in the proved facts and circumstances of the case, has no significance at all. Plea of alibi canvassed contending that the accused was at a different place by examining one witness as DW1 was rightly found to be unworthy of any merit by both the courts below. There is also no merit in the challenge raised that the Magistrate should have conducted an enquiry under Section 202 of Cr.P.C. since as on the date of the crime, that is, 21.8.1996, there was no scope or necessity for any such enquiry. Enhancement of punishment for various CRL.R.P.43/02 6 offences under Section 55 (a) of the Abkari Act came into effect only from 3.6.1997, long after the date of crime in the present case. As on the date of the crime, the punishment provided for the offence imputed against the accused, that is, under Section 55 (a) of the Act, was two years and with fine of not less than Rs.25,000/-. There was no scope for any enquiry under Section 202 of Cr.P.C. by the Magistrate as the report filed by the Abkari Officer could be taken as a complaint and no committal of the case was called for. So, both the challenges pressed by the counsel to impeach the conviction concurrently founded by the two courts below against the accused for the offence under Section 55 (a) of the Abkari Act fail, and I find that the conviction is fully supported by legal evidence warranting no interference at all. As regards the sentence imposed, the learned counsel is justified in contending that maximum punishment by way of fine apart from the substantive term of imprisonment that could have been imposed by the Magistrate was only Rs.5,000/-, and as such, the fine imposed for Rs.25,000/- by CRL.R.P.43/02 7 the Magistrate was incorrect. So, that part of the sentence warrants modification. Retaining the substantive term of six months simple imprisonment, the fine amount awarded by the Magistrate and confirmed by the Sessions Judge is reduced to Rs.5,000/- with default term of simple imprisonment for one month. Except the modification of the sentence with respect to fine as indicated above, the revision fails in all other aspects, and is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.43 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 24th April, 2009