IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 217 of 2009() ----------------------------- CRA.509/2006 of ADDL.SESSIONS COURT,-I, MAVELIKKARA SC.467/2004 of ASSISTANT SESSIONS COURT, MAVELIKKARA .................... REVN. PETITIONERS/APPELLANT/ACCUSED: ------------------------------- VASANTHAKUMAR @ NARAYANAN AGED 52 YEARS, S/O.RAGHAVAN VARUN BHAVANAM, MULAKKAZHA VILLAGE, KARACKADU MURI, CHEGANNUR. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(/RESPONDENT: ----------------------- STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HGIH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.217 of 2009 --------------------------------------- Dated this 31st day of July 2009 ORDER This revision is in challenge of judgment of learned Assistant Sessions Judge, Mavelikkara in S.C.No.467 of 2004 in criminal appeal No. 509 of 2006 confirming conviction and sentence of petitioner for offences punishable under Sec.8(1) and (2) of the Abkari Act (for short, “the Act”) for alleged possession of 900ml of illicit arrack. According to the prosecution, petitioner was found possessing the contraband on 20-04-2000 at about 8.15 p.m. Learned counsel contends that conviction and sentence of petitioner are not legal and proper. 2. PW1, Preventive Officer who is said to have detected the offence and PW2, guard who is said to have accompanied PW1 have given evidence that on 20-04-2000 while on patrol and they reached the place of occurrence they found petitioner carrying a bundle which on examination was found to contain illicit arrack in a plastic bottle. PW1 drew sample of 200ml from the contraband and the same as well as the rest were properly sealed, packed, labelled and taken to custody as per Ext.P1, mahazar. Petitioner was arrested at the spot. Ext.P2 is the arrest memo. Notice of arrest was given to the wife of petitioner. Ext.P3 is produced to prove service of notice. PWs.1 and 2 identified MO1, plastic bottle in which petitioner was allegedly carrying the contraband. PW3, independent witness is an attestor in Exts.P1 to Crl.R.P.No.217 of 2009 2 P3. Though in chief examination he stated that he signed the mahazar (Ext.P1) for seizure for arrack from petitioner, in cross examination he denied that and claimed that he had not seen Excise officials preparing the mahazar. It came out in evidence that PW3 is closely acquainted with petitioner. PW5, Excise Inspector claimed that on 20-04-2000 itself petitioner was produced before him along with the material objects and records. Material objects were produced on court on 22- 04-2000. Till then, the same were in his safe custody. PW4 is the Officer who succeeded PW5. He proved Ext.P4, report of chemical examination. 3. It is true that material objects were produced in court only on 22-04-2000 though alleged detection of the offence was on 20-04-2000 (at 8.15 p.m). But, the delay of two days is not sufficient to discard the evidence of PW1 and 2 in the circumstances which I have stated above PW5 has given evidence that until production in court the material objects were in his safe custody. Evidence of PWs.1 and 2 gets corroboration from PW3 also to some extent. Courts below have considered the evidence and reached the conclusion that petitioner was found in possession of contraband as alleged by the prosecution. There is little reason to interfere. 4. Learned Assistant Sessions Judge sentenced petitioner to undergo simple imprisonment for one year and payment of fine of Rs.100000/- with default sentence of imprisonment for three months. Crl.R.P.No.217 of 2009 3 Learned counsel submitted that during the period of investigation petitioner was detained for some time and that since 20-02-2009 onwards, he is undergoing imprisonment. Learned counsel requested that leniency may be shown to the petitioner. 5. Though petitioner was implicated in another case, learned counsel submitted that he was acquitted in that case. Considering the fact that contraband was seized was only 900ml and since petitioner is undergoing imprisonment from 20-02-2009 onwards I am satisfied that period of imprisonment already undergone by petitioner is sufficient in the ends of justice so far as substantive sentence is concerned. I am also inclined to modify the default sentence for non payment of fine as simple imprisonment for one month. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified, confined and limited to the period of imprisonment undergone till day. 2. Default sentence for non payment of fine is modified as simple imprisonment for one month. Trial court shall issue modified warrant forthwith to the Superintendent of Prison where petitioner is detained. THOMAS P JOSEPH, JUDGE Sbna/