IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 224 of 2002() ----------------------------- CRA.316/1997 of ADDL.SESSIONS COURT, THALASSERY CC.391/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KAYALODAN KELAPPAN, S/O.DARAPPAN, AGED 52 YEARS, RESIDING AT CHERUVANCHERRY AMSOM, POOVATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT BY ADV. SRI.R.SURENDRAN SRI.K.LAKSHMINARAYANAN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. EXCISE INSPECTOR, KUTHUPARAMBA, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M.KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1704/02 IN CRL.R.P.NO.224/02: CLOSED 27/3/2009 SD/- R. BASANT, JUDGE. //TRUE COPY// P.S. TO JUDGE R. BASANT, J. ------------------------------------------------- Crl.R.P. No.224 of 2002 ------------------------------------------------- Dated this the 27th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(a) of the Kerala Abkari Act. The crux of the charge against the petitioner is that on 06.03.1996 at 5.30 p.m when the Excise party intercepted him, he was found to carry 10 litres of illicit arrack in a can - i.e., M.O 1. 2. The accused denied the offence alleged against him and thereupon prosecution examined Pws 1 to 5 and proved Exts.P1 to P5. PW1 is the Preventive Officer who detected the offence. PW2 is the Excise Guard who accompanied him. Pws. 3 and 4 are the alleged independent witnesses to the seizure and apprehension. They admitted their signatures in the relevant documents; but did not subscribe to the contents of such documents. They were declared hostile and cross Crl.R.P. No.224 of 2002 -: 2 :- examined. PW5 is the official who filed the complaint against the accused before court. Ext.P1 is the seizure mahazar. Ext.P2 is the bail bond executed by the accused when he was released after his apprehension on the date of the occurrence. Ext.P3 is the occurrence report. Exts.P4 and P5 are the requisition to the Chemical Examiner and the report of the Chemical examiner. 3. The accused denied the offence alleged against him. In the course of 313 examination, he advanced a version which was not even put to PWs 1 and 2 when they were in the witness stand. According to them, one Kuttyvally - a Forest Watcher was addicted to drinks. He had some connection with the abkari offences. The can with the contraband article really belonged to him. But the petitioner was asked to lift the same and walk. He walked for some distance and there the Excise officials initiated action against him. He examined himself as DW1. No other evidence was adduced. 4. The courts below concurrently came to the conclusion that the oral evidence of P.Ws.1 and 2 can safely be believed. The hostility of P.Ws.3 and 4 did not, in any way, affect the testimony of P.Ws.1 and 2, it was held. The oral evidence of P.Ws.1 and 2 is supported by the contents of contemporaneous seizure mahazar – Ext.P1. P.Ws.3 and 4 admitted their Crl.R.P. No.224 of 2002 -: 3 :- signatures in the relevant documents. More over, the accused in his testimony as D.W.1 has made substantial admissions which go a long way to help the court to draw inspiration for the oral evidence of P.Ws.1 and 2. The courts below evidently took note of the admitted fact that Kuttyvally – the Forest Watcher, or the excise officials did not have any animus to falsely implicate the petitioner herein. They took note of the fact that the version advanced by the petitioner as D.W.1 was not even put to P.Ws.1 and 2 when they were in the witness stand. The totality of circumstances, according to me, eminently supports the findings of fact recorded by the courts below that P.Ws.1 and 2 can safely be believed. I do not, in these circumstances, find any merit in the challenge against the verdict of guilty and conviction. 5. The learned counsel finally contends that the sentence imposed is, at any rate, excessive. The learned counsel points out that the petitioner is an Adivasi. A reading of the entire materials must suggest that he has not been able to secure proper legal assistance in the conduct of the case, contends the counsel. The learned counsel further submits that, at any rate, the imposition of a sentence of rigorous imprisonment for six months is not necessary or warranted in the facts of this case. At the relevant time, the offence was punishable with Crl.R.P. No.224 of 2002 -: 4 :- imprisonment for a period of 2 years and fine not exceeding Rs.25,000/-. There was no mandatory minimum substantive sentence. In these circumstances, imposition of the substantive sentence of rigorous imprisonment for six months on the petitioner who has no criminal antecedents is not necessary or justified, contends the counsel. 6. I have considered all the relevant inputs. I have taken note of the circumstances of the case. I am satisfied that the sentence can be suitably modified and reduced. This revision petition can succeed only to the above extent. 7. In the result: (a) This Criminal Revision Petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Sec.55(a) of the Abkari Act are upheld. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.25,000/-. In default of payment of fine, the petitioner shall undergo simple imprisonment for a further period of two months. 8. The petitioner shall have time till 2/5/09 to surrender before the learned Magistrate to suffer the modified sentence Crl.R.P. No.224 of 2002 -: 5 :- hereby imposed. Till then, the sentence shall not be executed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on that date. Needless to say, if the petitioner does not appear before the learned Magistrate, the learned Magistrate shall be at liberty to take coercive action against the petitioner and his sureties under Sec.446 of the Cr.P.C. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.224 of 2002 -: 6 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.224 of 2002 ------------------------------------------------- Dated this the 27th day of March, 2009 ORDER