IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 333 of 2002() ----------------------------- ST.4303/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY CRA.506/1999 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... REVN. PETITIONER : APPELLANT/ACCUSED NO.1 ------------------------------------------- JOHNACHAN,AGED 47 YEARS S/O.THOMAS, CHAKKALAKKAL HOUSE,WEST CHALAKUDY VILLAGE-DESOM, MUKUNDAPURAM TALUK,THRISSUR DISTRICT BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT : RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.333 of 2002 ------------------------------------- Dated this the 29th day of July, 2010 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55Ii) of the Abkari Act. The petitioner, the 1st accused, was found guilty, convicted and sentenced under Section 55(i) of the Kerala Abkari Act to undergo R.I for a period of one year and to pay fine of Rs.25,000/-. In default of payment of fine, the petitioner was sentenced to undergo R.I for a period of 3 months. Another accused, the 2nd accused, also faced indictment along with the petitioner. He was found not guilty and acquitted of the charge under Section 64 of the Abkari Act. 2. The prosecution alleged that the petitioner was found to keep in his possession for sale in a stationery shop run by him 4 litres of wine as also a jar containing articles for the purpose of manufacture of wine when the excise party led by PW1 on receipt of discreet prior information inspected the stationery shop of the petitioner on 21.06.1996 at 4.45 p.m. The petitioner was arrested. He was later enalarged on bail. Complaint was filed against the petitioner by the Excise Inspector. Crl.R.P No.333 of 2002 2 3. Cognizance was taken. The petitioner denied the offence alleged against him and thereupon PWs 1 to 4 were examined and Exts.P1 to P4 were marked. PW1 is the Preventive Officer, who conducted the search and effected the seizure. Ext.P1 is the mahazar prepared by PW1. PWs 2 and 3 are attestors to Ext.P1 seizure mahazar. They admitted their signatures in Ext.P1. Both of them stated that the accused runs a stationery shop. PW2 admitted that the mahazar was prepared in the stationery shop of the petitioner and he had signed as a witness in the mahazar. PW3 stated that the petitioner has a stationery shop and that the mahazar was signed by him when the excise officer prepared the mahazar. Nothing more was stated. Both PWs 2 and 3 did not admit that seizure was effected in their presence. PW4 is the excise inspector before whom, the accused, the documents and the contraband articles were produced. Ext.P2 is the occurrence report. Ext.P3 is the Chemical Examiner's report secured by PW4, who allegedly forwarded a sample of the contraband wine to the Chemical Examiner. Ext.P4 is the ownership certificate. That has no relevance now and that was relied upon to link acquitted 2nd accused with the crime. Crl.R.P No.333 of 2002 3 4. In the course of cross examination of PW1, the petitioner/accused took the stand that he was running a shop where sale of fruit juice was taking place. Seizure effected was not of wine, but only of remnants of fruit juice that was available in the shop, it was suggested during cross examination. When the accused was examined under Section 313, he resorted to plea of total denial. He contended that he was arrested from a nearby workshop. 5. The courts below consistently came to the conclusion that the oral evidence of PW1 can safely be accepted and acted upon notwithstanding the hostility of Pws 2 and 3. Accordingly courts below came to the conclusion that the offence under Section 55(i) of the Abkari Act against the petitioner has been satisfactorily established. They accordingly proceeded to pass the impugned judgments. 6. Before me the learned counsel for the petitioner/accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned judgments on the following grounds: Crl.R.P No.333 of 2002 4 i) The courts below should not have accepted and acted upon the oral evidence of PW1; ii) The courts below ought to have come to the conclusion that the evidence of PW1 must arouse suspicion inherently in the wake of several inadequacies, inconsistencies and the improprieties in the course adopted by PW1; iii) At any rate, the courts below should not have held that the contraband article were available in the shop for sale; iv) The sentence imposed is at any rate excessive. 7. Grounds (i) to (iii) Primarily we have the oral evidence of PW1. PW1 is a public officer. I have gone through the cross examination of PW1 as also the 313 statement of PW1 in detail. Significantly there is not a semblance of a suggestion of improper motive for PW1 to speak any falsehood against the accused. In fact, the inconsistent stand taken during cross examination of PW1 and when the accused was examined under 313 Cr.P.C in the light of the want of challenge for bona fides of PW1, must eloquently convey to any prudent Judge of facts that there is inherently no reason to approach the testimony of PW1 with any amount of doubt, suspicion or distrust. Oral evidence of PW1 is eminently Crl.R.P No.333 of 2002 5 corroborated by the contents of the contemporaneous seizure mahazar - Ext.P1. It is true that PWs 2 and 3 did not support the prosecution case in toto, but their evidence clearly shows that they had signed as attestors to Ext.P1. Nay, the oral evidence of hostile PW2 does clearly show that this mahazar with the said contents was prepared by PW1 at the stationery shop of the petitioner and he had signed the said mahazar at the said stationery shop. It is true that both PWs 2 and 3 have not supported the case of the prosecution in toto. It is true that the evidence of the other officials, who accompanied PW1, has not been made available before court. But notwithstanding all this, I am not persuaded to agree that I will be justified at this third tier of criminal litigation in discarding the evidence of PW1 on the plea urged that he is unworthy of credence. I do not, in these circumstances, find anything which can persuade the Court to approach the oral evidence of PW1 with any amount of doubt, suspicion or distrust. 8. Though it was claimed that the search memo was sent to court by post, is not produced or marked. Even a copy of the search memo has not been produced and marked. That inadequacy notwithstanding, I am unable to approach the oral Crl.R.P No.333 of 2002 6 evidence of unbiased PW1 with an attitude of distrust on that score. 9. The learned counsel argues that two samples are claimed to have been taken as per Ext.P1 seizure mahazar. But as per Ext.P2, reference is made only to one sample bottle. The counsel further points out that the sample was sent to the Chemical Examiner not through court, but by PW4. The counsel further builds up an argument that though the seizure was effected on 21.06.1996, the sample had reached the Chemical Examiner only on 12.07.1996. This delay is unexplained. The counsel further argues that there is nothing authentic to conclude that the sample that reached the Chemical Examiner was the sample that was seized under Ext.P1. I have considered this contention. It is true that the gap of time between 21.06.1996 and 12.07.1996 has not been convincingly explained, but the gap of time is not such as to persuade the Court to reckon the same as sufficient to discard the oral evidence of PW1. About the identity of the sample which reached the Chemical Examiner, we have intrinsic evidence that the sample in Crime No.15 of 1996 of the concerned excise station had reached the Chemical Examiner. The fact that the sample was Crl.R.P No.333 of 2002 7 sent by PW4 directly and not through court does not also persuade me to doubt or suspect the oral evidence of PWs 1 and 4. I am not, in these circumstances, persuaded to agree that these alleged inadequacies which the learned counsel for the petitioner in meticulous detail has pointed out to court are sufficient to reject the final conclusions of the court below. Of course, this Court is dissatisfied that there has been delay in sending the sample from 21.06.1996 to 12.07.2006. The court also notes that the second sample of bottle was not produced before any authority. The court also notes that the sample was sent directly to the Chemical Examiner and not through court. Conscious of these inadequacies, I am of the opinion that the oral evidence of PWs 1 and 4 and the course adopted by the courts below of believing those witnesses cannot be faulted for the above reasons. 10. Courts cannot offer to ignore the fact that the appreciation of oral evidence is both an art and science. Pws 1 and 4 are public officials. Except that they are public officials charged with the responsibility of detecting offences and prosecuting the offenders, no reasons are shown to exist as to why the statements on oath made by PWs 1 and 4 should be Crl.R.P No.333 of 2002 8 disbelieved or discarded. Inherently and in its core, the oral evidence of PWs 1 and 4 deserve acceptance and I am not persuaded to throw the entire case of the prosecution over board or to discard the evidence of PWs 1 and 4 on the basis of the infirmities that have been pointed out. 11. The contention is strenuously urged that even after the entire versions were accepted, there is nothing to show that the articles were kept for sale. It was a stationery shop. The quantity of the contraband article available in the shop has also got to be taken into account. In two jars, half filled wine was there. In another jar, articles were kept ready allegedly for manufacture of wine. A glass used to carry wine was also available at the scene. It was a stationery shop. PW1 had gone to the scene of the occurrence on receipt of credible information about the sale of liquor in the shop. 12. All these circumstances must convincingly persuade a prudent person, whose standards a court is expected to follow consequent to the mandate under Section 3 of the Evidence Act, to hold that the wine in question was kept there in the premises of the petitioner for sale. Crl.R.P No.333 of 2002 9 13. It is true that no documents have been produced to show that the petitioner was the one who was carrying business in the stationery shop. No licence has been produced. But the stand taken by the accused during the cross examination reveals that he was present at the scene. He has not stated that any other person was the owner of the shop. The evidence of hostile PW2 seals the fate of this theory as he states that he had signed the mahazar at the stationery shop run by the petitioner. I do not, in these circumstances, find any semblance of doubt on the question of the nexus of the petitioner with the shop in question. 14. I am, in these circumstances, of the opinion that the challenge raised on these ground cannot succeed. I concur with the concurrent conclusion of the courts below that possession for sale of the wine in question by the petitioner at his stationery shop has been established beyond doubt. 15. We now come to the question of sentence. The counsel points out that a period of about 1 ½ decades has already elapsed from the date of the offence. The counsel points out that the article in question is only wine . The counsel further points out that the total quantity is small. The petitioner has endured the trauma of this prosecution for the past about 1 ½ Crl.R.P No.333 of 2002 10 decades. At the relevant time, there is no stipulation of any minimum mandatory sentence of imprisonment. The sentence prescribed is only imprisonment which may extend to a period of 2 years and fine which shall not be less than Rs.25,000/-. In the facts and circumstances of the case, I am satisfied that imposition of a sentence of imprisonment till rising of court and the mandatory minimum sentence of fine of Rs.25,000/- shall meet the ends of justice eminently. 16. In the result: a) This revision petition is allowed in part; b) The concurrent verdict of guilty, conviction and sentence of fine and the default sentence are upheld; c) But the sentence of imprisonment imposed on the petitioner is modified and reduced to imprisonment till rising of court. 17. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 31.08.2010 for execution of the modified sentence hereby imposed. The sentence shall not be executed till then. If the petitioner does not appear, the learned Magistrate shall at liberty to take Crl.R.P No.333 of 2002 11 necessary action against the accused and his sureties after 31.08.2010 to secure his presence. (R.BASANT, JUDGE) rtr/-