IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 135 of 2008() ----------------------------- CRA.66/2004 OF ADDL.SESSIONS JUDGE, ADHOC-II, KASARAGOD SC.893/2000 of ASSISTANT SESSIONS COURT, KASARAGOD .................... REVN. PETITIONER: ACCUSED: -------------------------- K.V.KANNAN, S/O.APPAKUNHI, CHARLADKAM OF BELA VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.JAI GEORGE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.1.08 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl. R.P. No. 135 OF 2008 ```````````````````````````````````````````````````` Dated this the 29th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(a) of the Kerala Abkari Act. The crux of the allegations against the petitioner is that he was found to keep in his possession and transport 10 litres of arrack at 6.45 a.m. on 15.10.1999. The detection was made by PW1. Investigation was conducted by PW3. Final report was filed by him. The accused denied the charge levelled against him and thereupon the prosecution examined PWs 1 to 3 and proved Exts.P1 to P7. MO1 was also marked. The accused took up a defence of total denial. According to him, there was no recovery whatsoever and he was proceeded against without any valid reason. 2. The courts below came to the conclusion that the Crl.R.P.No.135/08 : 2 : oral evidence of PW1 can be safely accepted and acted upon and when acted upon that evidence is sufficient to prove the guilt of the accused under Section 55(a) of the Kerala Abkari Act. Accordingly, they proceeded to pass the impugned concurrent judgments. 3. The petitioner claims to be aggrieved by the impugned order. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions that were raised before the court below. 4. The evidence of PW1 does not deserve to be accepted, it is contended. There is a contention that the sister of the petitioner, who is ill disposed to him, is working as an employee/maid in the house of PW3 and that is the reason why such a false complaint has been initiated against him. Significantly, the suggestion has not been put to PW3 at all. PW1 is a public official and no reason is even suggested as to Crl.R.P.No.135/08 : 3 : why he wanted to foist a false case against the petitioner. PW2 is an independent eye witness and attestor to Ext.P1 seizure mahazar. PW2 turned hostile but admitted his signature in Ext.P1. The contents of the contemporaneous Ext.P1 seizure mahazar go long way to support the oral evidence of PW1. In these circumstances, I find no merit in the contention that PW1’s oral evidence must be discarded. 5. The contraband article had reached the court on the date of seizure itself i.e., on 5.10.1999. The forwarding note was submitted to court on the same day and the contraband article was forwarded to the chemical examiner under the seal of the court thereafter. The sample was received by the chemical examiner on 11.11.99 when the same was despatched through an excise guard. The seal on the sample was found to be intact. In these circumstances, the mere fact that the sample produced on 5.10.99 reached the expert on 11.11.99 is, according to me, not a satisfactory reason to doubt or suspect the efficacy and acceptability of Crl.R.P.No.135/08 : 4 : the report of the chemical examiner. 6. No other contentions are raised. I am satisfied that the impugned verdict of guilty and conviction do not warrant interference at all. 7. The learned counsel for the petitioner then submits that the petitioner is undergoing imprisonment in execution of the sentence now. The petitioner faces a sentence of simple imprisonment for a period of 20 days and to pay a fine of Rs.1,00,000/-. The substantive sentence of imprisonment imposed does appear to me to be absolutely fair and reasonable. All relevant circumstances in favour of the petitioner appear to have been considered by the learned Judges of the courts below. No further leniency is warranted on that aspect. The minimum sentence of fine only is imposed. Hence, the quantum of fine cannot also be assailed by the petitioner. The counsel for the petitioner submits that in any view of the matter, while imposing the default sentence, the courts below have not considered the financial position of Crl.R.P.No.135/08 : 5 : the petitioner and his total inability to raise and pay the amount. Leniency must have shown on the question of the default sentence, submits the learned counsel for the petitioner. 8. Having considered all the relevant inputs and taking note of the sequence of events from 1999, I am satisfied that the petitioner is entitled for leniency on that aspect. I am satisfied that the default sentence can be reduced to simple imprisonment for two months. Such reduction only advances the interests of justice. 9. This revision petition is accordingly dismissed. The impugned judgments are upheld in all other respects. But the default sentence of simple imprisonment for three months is reduced to simple imprisonment for two months. 10. Handover copy of the order to the learned counsel for the petitioner for communication to the court below. (R.BASANT, JUDGE) aks