IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 1482 of 2001() ------------------------------ {CR.A.NO.408/1998 OF THE SESSIONS COURT, KOZHIKODE IN C.C.NO.387/1996 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: VELAYUDHAN, AGED 45 YEARS, S/O.THEYYAN, KUNNAPOL MEETHAL VEETTIL, MANTHARATHOOR AMSOM DESOM, VADAKARA (VIA), KOZHIKODE. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S)/RESPONDENT: --------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF EXCISE, VADAKARA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.1482 of 2001 ------------------------- Dated this the 10th day of February, 2009. O R D E R The accused, in C.C.No.387/96 on the file of the Judicial Magistrate of the First Class, Vadakara, who was convicted for an offence under Section 58 of the Abkari Act, is the petitioner in this Criminal Revision Petition. 2. The prosecution alleged that on 22.8.1995 at about 4 PM, PW.1 Excise Inspector attached to the Vadakara Excise Circle, who was doing patrol duty along with PW.2 at Mantharathoor and while going along the road, saw the accused walking along the road carrying a Can in his hand. The same was taken into custody and a sample of 180 ml was taken. The Can itself was seized and the signature of the accused was taken on the label of the Can. Ext.P1 mahazar was prepared and it was attested by Pws.3 and 4. CRL.R.P.No.1482 of 2001 :: 2 :: 3. PW.1 Excise Inspector spoke in terms of the prosecution case. PW.2, who accompanied as part of the patrol party, also spoke in terms of the prosecution case. Pws.3 and 4 independent witnesses turned hostile. But nevertheless, they identified their signatures in Ext.P1. I find it difficult to accept the evidence of PW.3 that he had gone to the Excise Inspector's Office to give a complaint against illicit distillery. He was studying for his degree at that time and it is too much to believe that he has put his signature without reading its contents, especially when, according to him, he was an agitator against illicit distillation and had gone to the Excise Inspector's office to lodge a complaint. In such circumstances, it is difficult to believe that he had simply subscribed his signature. 4. Though there was a feeble suggestion in the cross-examination of PW.1 that his evidence in some other abkari case was made use of for the present case, no other previous enmity as such was suggested for any CRL.R.P.No.1482 of 2001 :: 3 :: tenable reason. The evidence of Pws.1 and 2 inspires confidence in the mind of the court and in my view, they were rightly accepted by the court below. 5. I also take note of the fact that M.O.1 can was affixed with a label and the label contains the signature of the accused. No explanation whatsoever is forthcoming regarding this aspect. 6. Learned counsel for the petitioner submits that though the arrest was executed on 22.8.1995, the thondy articles have reached the court only on 24.8.1995, with a delay of 2 days. This circumstance, in my view, cannot be considered as fatal to the prosecution. 7. Learned counsel for the petitioner relied on the judgment of this court in Jayakumar @ Kolusu Jayan v. State of Kerala {2007(4) KHC 236} to contend that unexplained delay in the production of the thondy articles will derogate from the acceptability of the prosecution case. Jayan's case involved a situation CRL.R.P.No.1482 of 2001 :: 4 :: where the accused were arrested on 24.6.1999, but the thondy articles were produced more than 40 days thereafter. Moreover, this court had appreciated the testimony of Pws.3 and 4 officials and that it was found that they did not inspire confidence. Jayan's case has no application to the facts of this case. 8. On an anxious consideration of the entire evidence and after hearing counsel on both sides, I do not any grounds to interfere with the conviction. 9. Learned counsel for the petitioner submits that the offence took place before the amendment of the Abkari Act. The fine of Rs.15,000/- with a sentence of imprisonment for one month is excessive, it is contended. 10. I heard learned Public Prosecutor on this aspect. In my view, imprisonment till the rising of the court with a suitable fine would suffice. In the result, Criminal Revision Petition is allowed in part. The conviction of the accused under CRL.R.P.No.1482 of 2001 :: 5 :: Section 58 of the Abkari Act is upheld. The accused is sentenced to undergo simple imprisonment till the rising of the court. He is also directed to pay an amount of Rs.20,000/- as fine. The fine shall be paid within two months. If the petitioner/accused fails to pay the fine amount, he will undergo simple imprisonment for two months. The accused shall appear before the court below on 23.03.2009 to suffer the imprisonment. Lower Court Records shall be transmitted back to the court below, forthwith. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge