IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 Crl.Rev.Pet.No. 1503 of 2001(A) ------------------------------ CRA.22/1999 of SESSIONS COURT, KOZHIKOE CC.328/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER: --------------------- MALU, W/O. KELAPPAN CHETTIYAM HOUSE, KAKKODI AMSOM PADINJATTUMMURI DESOM BY ADV. SRI.N.M.JAMES RESPONDENTS: --------------- 1. EXCISE INSPECTOR, CHELANNUR RANGE (IN CRIME NO. 156/1995) 2. STATE OF KERALA REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 06/04/2010 PASSED THE FOLLOWING: ORDER ON CRL. M.P. NO. 6979 OF 2001 IN CRL. R.P. NO. 1503 OF 2001A DISMISSED. SD/- M.L.JOSEPH FRANCIS, JUDGE 6.4.2010 M.L. JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. R.P. No. 1503 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April , 2010 ORDER This revision petitioner was the accused in C.C. No. 328 of 1996 on the file of the Judicial 1st Class Magistrate, Kunnamangalam under Section 58 of the Abkari Act and was also the appellant in Crl. Appeal. No. 22/1999 on the file of the District and Sessions Judge, Kozhikode. 2. This revision petitioner was charge- sheeted under Section 58 of the Abkari Act by the 1st respondent. 3. The prosecution case is that on 3.7.1995 at about 3.30 p.m., the revision petitioner was found transporting about 2 ½ litres of illicit arrack in a plastic cannas of 5 litres capacity through the Panchayath Road from Chalil Thazham to Oottukulam at Crl.R.P. No. 1503 of 2001 2 Padinjattummuri in Kakkodi Village, Kozhikode Taluk. 4. The revision petitioner faced trial before the Judicial 1st class Magistrate Court, Kunnmangalam in C.C. No. 328 of 1996 and the Prosecution had examined PWs 1 to 6 and marked Exhibits P1 to P6 and MO1. The revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. 5. After closing evidence, the Magistrate Court heard both sides, and the revision petitioner was convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.3,000/- (Rupees three thousand only) in default to undergo simple imprisonment for one month under Section 58 of the Abkari Act. 6. Against the conviction and sentence imposed by the trial court, the revision petitioner preferred an appeal before the District and Sessions Judge, Kozhikode in Crl. Appeal No. 22/99. The Appellate Court confirmed the conviction and sentence imposed by the Trial Court. Crl.R.P. No. 1503 of 2001 3 7. Aggrieved by that judgment, the accused filed this C.R.P. 8. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 9. The learned counsel for the revision petitioner submitted that the courts below ought to have held that the prosecution suppressed the material facts from the court for the reason that the then C.I. with whom the M.Os and records were produced was not even cited as a witness. The learned counsel for the revision petitioner further submitted that PW1 deposed that M.Os and records were produced before one N.S. Chandra Sekharan Nair, the then C.I., PW6 had deposed that he does not know whether the M.Os and records were produced before C.I. Chandra Sekharan Nair. Learned counsel for the Revision petitioner submitted that Lower Court ought to have held that Ext.P3 and P4, the occurrence reports ought to have been dated and omissions to put dates on Ext.P3 and P4 are crucial and this aspect ought to have been considered in favour of the petitioner. Crl.R.P. No. 1503 of 2001 4 10. PW1 was the Preventive Officer attached to Kozhikode Excise Enforcement and Anti Narcotic Special Squad. PW2 was then Excise Guard attached to the Special Squad. PW1 and PW2 deposed that on 3.7.1995 at about 3.30 pm while they were conducting patrol duty from the Panchayath Road from Chalil Thazham to Oottukulam and when they reached near the house of one Rajan, they saw the accused coming with a black plastic canass in her hand and on seeing the Excise party she became perplexed and tried to go back. Then she was prevented by the Excise party and the contents in the cannas were examined by tasting and smelling in the presence of two witnesses and it was found to be illicit arrack. Then the accused was questioned and she told that she carried it for sale. She was arrested on the spot and was taken into custody. Out of the illicit arrack, sample was taken in a 180 ml bottle and labels containing signature of the accused were affixed on the sample bottle and the MO1 cannas containing remaining arrack was seized. PW1 and PW2 would Crl.R.P. No. 1503 of 2001 5 swear that there was about 2 ½ litres of illicit arrack in that M.O1 cannas having 5 litre capacity. 11. Ext.P1 is the mahasar prepared and the accused was released on bail and the thondi articles and records were produced before the C.I. of Excise, Kozhikode. PW1 and PW2 identified MO1 cannas seized from the accused who was present in the court. PW4 and PW5 are independent witnesses examined to prove Ext.P1 mahazar. Even though they turned hostile they admitted their signature in Ext.P1. The offence was dated as 3.7.1995 at 3.30 pm and Ext.P5 forwarding note by which the sample of illicit arrack seized from the possession of the accused was sent to the Magistrate Court for getting the same analysed by chemical examiner is dated 5.7.1995. So as observed by the courts below it cannot be said that there was much delay in producing the same before the Magistrate court. 12. Ext.P2 report of the Chemical examiner would show that seals of the sample bottle was in tact and tallied with the Crl.R.P. No. 1503 of 2001 6 specimen impression of the seal contained in the forwarding note. Ext.P2 report of the Chemical examiner would show that the sample contained 57.74 % by volume of ethyl alcohol. PW3 the then Excise Inspector would say that the strength of the arrack distributed by the Government during that the period was 42.86% by volume of ethyl alcohol. The accused has no case that she possessed the illicit arrack without knowing of nature of the liquor. Eventhough independent witnesses who signed seizure mahazar are resiled from their former version it would not mean that the prosecution case regarding the occurrence is not correct. Identify of the accused cannot be doubted as she was arrested on the sport. Even though C.I. before whom the seized articles were produced is not examined; Ext.P3 report is proved by the examination of PW6. Ext.P1, P3, P4 and P5 are seen proved before the Magistrate court on 5.7.1995 itself and therefore the omission to put date on Ext.P3 and ExtP4 is not fatal to the prosecution case. Nothing is brought out to discredit the Crl.R.P. No. 1503 of 2001 7 testimony of official witnesses. 13. Both the courts below properly considered and appreciated the evidence on record and found that the accused has committed an offence punishable under Section 58 of the Abkari Act by possessing illicit arrack and the the accused was convicted. Since the above conviction has been recorded on a careful evaluation of both the oral and documentary evidence, I do not find any error, illegality or impropriety in the conviction so recorded concurrently by courts below and the same is hereby confirmed. 14. Learned counsel for the revision petitioner submitted that the revision petitioner/ accused is an aged poor widow and she is the only earning member. Considering this aspect and the facts and circumstances of the case, I am of the view that interest of justice would be served by reducing the sentence to undergo simple imprisonment for two months to imprisonment for one month and by maintaining the fine of Rs.3,000/-. Crl.R.P. No. 1503 of 2001 8 Accordingly this C.R.P. is allowed in part. The conviction of the accused in C.C. No. 328 of 1996 on the file JFCM Kunnamangalam under Section 58 of the Abkari Act is confirmed. The sentence is modified and that the accused is sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for another one month under Section 58 of the Abkari Act. JFCM, Kunnamangalam is directed to implement the modified sentence. M. L. JOSEPH FRANCIS, JUDGE dl/