IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.REV.PET.NO. 685 OF 2009() ------------------------------------------- CRA.115/2007 OF ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA SC.246/2001 OF ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER(S): APPELLANT ------------------------------------------------- KUNHUMON @ SINESH GEORGE, S/O.K.J. GEORGE, KOODAKKATTIL HOSE, PATHIRIYAMBAM, NADAVAYAL, SULTHANBATHERY TALUK. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT ------------------------------------------------ STATE OF KERALA (EXCISE INSPECTOR, EXCISE RANGE, SULTHANBATHERY), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.685 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of June, 2009 O R D E R -------------- Revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kalpetta in Crl. Appeal No.115 of 2007 altering conviction of the petitioner to offence punishable under Section 8(2) of the Abkari Act and awarding sentence of rigorous imprisonment for six months and fine of Rs.1,00,000/-. 2. Case was registered on the final report submitted by P.W.5, Excise Inspector. According to prosecution on 17.9.1999 at about 6.00 p.m. petitioner was found in possession and transporting 15 packets of Karnataka made arrack in a polythene bag. P.W.1, Preventive Officer is said to have detected the offence. He stated that on the relevant day, time and place while he along with party was on patrol duty and reached the bus stop at Alunkalthazham found petitioner carrying a polythene bag. In the presence of witnesses (P.Ws.3 and 4), P.W.1 searched the polythene bag and found it containing 15 packets of Karnataka made arrack. P.W.1 drew sample from two packets. The same as well as the rest of packets were packed and label containing signature of petitioner, P.W.1 and witnesses were affixed on it. The same were seized as per Ext.P1, CRL. R.P. No.685 of 2009 -: 2 :- mahazar. P.W.1 identified M.O.1 as the polythene bag which the petitioner was allegedly carrying. M.O.2 series are unbroken packets (13 in number) and M.O.3 series are empty packets from which P.W.1 allegedly drew sample. P.W.2 is also a Preventive Officer of the squad. He claimed to have accompanied P.W.1 on patrol duty and supported the prosecution. He identified M.Os.1 to 3. P.Ws.3 and 4 are independent witnesses and attesters in Ext.P1. P.W.4 is also an attester in Ext.P2, arrest memo issued by P.W.1. They did not support the prosecution but admitted their signature in Exts.P1 and P2. According to P.W.3 he signed Ext.P1 at Pathiriyanam. P.W.4 stated that he was called to that place and he signed in blank papers. P.W.4 admitted that petitioner is his neighbour. P.W.6, Excise Inspector stated that petitioner along with the material objects were entrusted to him on 18.9.1999. He registered crime and occurrence report (Ext.P4) and produced the accused before learned magistrate. Material objects were also produced as per Ext.P6, property list. Exhibit P7 is the mahazar for scene of occurrence. He prepared Ext.P5, forwarding note for sending the sample for chemical examination. Exhibit P3 is the chemical examiner's report which shows that the sample contained 35.15% by volume of Ethyl Alcohol. CRL. R.P. No.685 of 2009 -: 3 :- P.W.5, Excise Inspector submitted final report. 3. Though final report was submitted alleging offence under Sec.55(a) of the Act and learned Assistant Sessions Judge found petitioner guilty of that offence, appellate court altered the conviction to Sec.8(2) of the Act. Learned counsel contends that conviction of the petitioner even as altered by the appellate court is not sustainable. According to learned counsel P.W.4 was specific that he has signed in blank papers and this is clear from Exts.P1 and P2. Counsel contends that in Exts.P1 and P2 witnesses are seen to have signed in different inks. It is also contended by counsel that such difference is practically admitted by P.W.1. 4. Assuming that ink used by the witnesses to put their signature in Exts.P1 and P1 are slightly different, that by itself is not a ground to disbelieve the evidence of P.Ws.1 and 2 if it is otherwise acceptable. According to P.W.1 the difference was because witnesses had used different pens for signing Exts.P1 and P2. Contention is that making use of abandoned contraband articles petitioner was falsely implicated. It is true that being an accused, petitioner is not required to explain for what reason he was falsely implicated. But in analysing Exts.P1 and P2 and deciding whether CRL. R.P. No.685 of 2009 -: 4 :- that evidence is acceptable it is relevant to consider whether P.Ws.1 and 2 had any animosity to the petitioner so that he was falsely implicated. There is no suggestion that P.Ws.1 and 2 had any such animosity to the petitioner so that he was falsely implicated. It is seen from the records that on 18.9.1999 itself Exts.P1 and P2 were produced before learned magistrate. It is also seen from Ext.P6, properly list that material objects were produced in the trial court on 18.9.1999. Evidence shows that the material objects were properly sealed, packed and labelled. There is no challenge to the identity of the material objects. In these circumstances I do not find reason to disbelieve the evidence of P.Ws.1 and 2. 5. So far as P.Ws.3 and 4 are concerned, P.W.4 admitted that he is a neighbour of the petitioner. That P.Ws.3 and 4 did not support the prosecution is not a ground to disbelieve the evidence P.Ws.1 and 2. On going through the evidence I do not find reason to interfere with the finding of the courts below regarding seizure of contraband from possession of petitioner on the relevant day, time and place. Nor is there reason to interfere with conviction as altered by the appellate court. 6. What remained for consideration is whether sentence CRL. R.P. No.685 of 2009 -: 5 :- awarded by the appellate court is excessive. It is contended by learned counsel for petitioner that petitioner was aged only 19 years at the time of incident. It is also submitted that petitioner is not shown to be involved in any other case. He had been in jail for 40 days having been arrested on 17.9.1999 and released on 29.10.1999. 7. I have heard learned Public Prosecutor in the matter of sentence. Considering the age of the petitioner on the date of incident and also the fact that he has already undergone imprisonment for 40 days I am inclined to think that substantive sentence can be confined to the period of imprisonment already undergone. Fine as awarded is legal and proper. In case of default in payment of fine petitioner shall undergo simple imprisonment for 20 days. Resultantly, revision is allowed in part to the following extent: (I) Substantive sentence of imprisonment is modified and confined to the period of imprisonment undergone by the petitioner from 17.9.1999 to 29.10.1999. (ii) Petitioner shall deposit the fine of Rs.1,00,000/- (Rupees One lakh only) in the trial court on or before 16.7.2009 and in default of payment, undergo simple imprisonment for twenty days. CRL. R.P. No.685 of 2009 -: 6 :- Petitioner shall appear in the trial court on 16.7.2009. Criminal Miscellaneous Application No.2030 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv