IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Crl.Rev.Pet.No. 874 of 2010() ----------------------------- CRA.69/2002 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD SC.339/1999 of ASSISTANT SESSIONS COURT, KASARAGOD .................... REVN. PETITIONER(S): PETITIONERS -------------------------------- 1. RATNA, W/O.LATE RAMA NAIK,AGED 60 YEARS 2. BALAKRISHNAN, S/O.LATE RAMA NAIK, AGED 23 YEARS, 3. VIJAYAKUMARI, D/O.LATE RAMA NAIK AGED 29 YEARS. 4. NAYANAKUMARI, D/O.LATE RAMA NAIK AGED 26 YEARS , ALL RESIDING AT ACHAYIMOOLA P.O.PALLATHADKA, VADIADKA VILLAGE KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R. P. NO. 874 of 2010 * * * * * * * * * * * * * * * * * * Dated : 11-3-2010 ORDER The revision petitioners who are the legal heirs of late Rama Naik who was the accused in S.C. No. 339 of 1999 on the file of the Assistant Sessions Judge, Kasaragod , challenge the conviction entered and the sentence passed against the said Rama Naik for an offence punishable under Sec. 55 (a) of the Abkari Act. It was a prosecution by the Excise Inspector , Badiadka Excise Range , Excise Crime No. 10/1998. According to the prosecution, the accused Rama Naik was found in possession of 4 litres of illicit arrack in a 5 litre can on 17-4-1998 at 4 p.m. on a public road in front of a grocery shop. 2. The trial Court convicted the said Rama Naik and sentenced him to rigorous imprisonment for two years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to Crl.R. P. NO. 874 of 2010 -:2:- suffer rigorous imprisonment for one year more. Aggrieved by the judgment of the trial court Rama Naik had filed an appeal before the Sessions Court, Palakkad. Pending the said appeal he died. Since the sentence included one of fine , there was no abatement of the appeal. However, the wife and children of the said Rama Naik did not file any petition before the lower appellate Court under the proviso to Sec. 394 (2) Cr.P.C. The lower appellate court took the view that since the sentence of the trial Court included fine , there was no abatement and since the legal representatives of the deceased/appellant had not approached the appellate Court, the appellate court confirmed the conviction and held that the State is entitled to recover Rs. 1,00,000/- from the assets of the deceased as compensation. It is the said judgment which is assailed in this Revision filed by the legal heirs of deceased Rama Naik. 3. In as much as the lower appellate Court did not give Crl.R. P. NO. 874 of 2010 -:3:- an opportunity of being heard to the revision petitioners before confirming the conviction and sentence, the order for payment of compensation of Rs. 1,01,000/- is unsustainable. I am inclined to give them an opportunity to argue the appeal on merits. Accordingly, the impugned judgment dated 29-6- 2007 of the Addl. Sessions Judge (Adhoc-I), Kasaragod in Crl.A. 69 of 2002 is set aside and the matter is remitted to the lower appellate court for fresh disposal of the appeal after giving the revision petitioners an opportunity of being heard. V. RAMKUMAR, (JUDGE) ani.