IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 1990 of 2009() ------------------------------ CRA.266/2007 OF ADDL. SESSIONS JUDGE (AD HOC)11, KASARAGOD) SC.454/2005 OF ASSISTANT SESSIONS COURT, HOSDRUG .................... PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- M.MANI, S/O. MANGATH VEETIL KOTTANKUNHI, BENGALAM, MADIKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DIST. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT/RESPONDENT/ COMPLAINANT: ------------------------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1990/2009 ORDER ON CRL.M.A NO.6009/2009 IN CRL. R.P NO.1990/2009 DISMISSED SD/- 10/07/2009 THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/- THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1990 of 2009 --------------------------------------- Dated this 10th day of July 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track-II, Kasaragod in criminal appeal No.266 of 2007 confirming conviction and sentence of petitioner for offence punishable under Sec.55(a) of Abkari Act for alleged possession and transportation of 2.5 litres of illicit arrack. Petitioner faced trial in the court of learned Sessions Judge, Hosdrug in SC No.454 of 2005 on the allegation that on 13-02-03 at about 6.15 p.m he was found possessing and transporting illicit arrack in a jerry can. The offence is said to have been detected by PW1. PW2 claimed to have accompanied PW1. They gave evidence regarding the alleged incident. According to them PW1 drew sample from the contraband the same as well as rest of the contraband were properly packed, sealed and labelled and taken to custody as per Ext.P2 (seizure mahazar). MO1 is the can in which the petitioner was allegedly carrying illicit arrack. PW6 is the witness examined for prosecution. He admitted signing Ext.P2 but refused to support the prosecution. PW4 investigated the case. Ext.P7 is the site plan prepared by PW3, Village Assistant. Ext.P3 is the occurrence report prepared on 14-02-03. Ext.P4 is the property list as per which material objects were produced before the court on 14-02-03. Ext.P6 is the specimen impression of the seal affixed on the material object. Crl.R.P.No.1990 of 2009 2 The clerk of the court concerned forwarded the sample to the laboratory for examination. Ext.P8, report of the chemical examination states that the sample contained 22.76% by volume of Ethyl Alcohol. From the above evidence learned Assistant Judge found that petitioner committed the offence. He was sentenced to undergo simple imprisonment for six months and payment of fine of Rs.100000/-. Petitioner preferred an appeal. Appellate court disposed of the appeal without hearing counsel as he was not available. 2. It is contended by learned counsel that appellate court was not legally correct in disposing of the appeal without hearing counsel or appellant. It is seen from the judgment of appellate court that though appellant or counsel were not present at the time of hearing the appeal is disposed on merit after perusing the records. The Supreme Court has held in Keralakumaran V. State of Kerala (1995 (1) KLT 789) and Bani Singh V. State of U.P. (1996 (2) KLT 424 (SC)) that in such circumstances it is open to the appellate court peruse the records and dispose of the appeal on merit. Therefore there is nothing wrong in the appellate court disposing the appeal on merrit after perusing the records. 3. It is then contended by learned counsel that place of occurrence is not properly located in Ext.P7, site plan. Contention is Crl.R.P.No.1990 of 2009 3 that the milk society situated nearby as per the evidence is not mentioned in Ext.P7. I am not inclined to think, that by itself affected the case of the prosecution or evidence produced. That, PW6 the independent witness attested in Ext.P2 did not support the prosecution is also no ground to disbelieve evidence of Pws.1 and 2. Their evidence is corroborated by Ext.P2, seizure mahazar and Ext.P1 memo for arrest of petitioner prepared at the spot. Material objects are seen produced in court without delay. There is no challenge to the identity of the material object. In these circumstances courts below are justified in accepting the evidence of PWs.1 and 2and holding petitioner guilty of offence punishable under Sec.55(a) of Abkari Act. I do not find reason to interfere. 4. It is submitted by learned counsel that petitioner is not involved in any other case. It is also submitted by learned counsel that the family is dependent on petitioner who is the sole bread winner. Considering the circumstances stated by learned counsel, substantive sentence awarded to the petitioner can be modified as simple imprisonment for three months while retaining the sentence of fine. But default sentence is modified as simple imprisonment for one month. Crl.R.P.No.1990 of 2009 4 Resultantly this revision is allowed in part to the following extent. (1)Imprisonment awarded to the petitioner is modified as simple imprisonment for three months. Set off is allowed. (2)Sentence of fine will remain in force but the default sentence is modified as simple imprisonment for one month. THOMAS P JOSEPH, JUDGE Sbna/