IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Crl.Rev.Pet.No. 1256 of 2003(C) -------------------------------------------- CRA.277/1999 of IIIRD ADDL. SESSIONS COURT, KOZHIKOE CC.726/1996 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA. ................. REVN. PETITIONER(S): APPELLANT/ACCUSED NOS. 1 AND 2 ----------------------------------- 1. VASU S/O. MUNDAN, PALAMUTTATH HOUSE, PANTHALLOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT. 2. SUBRAMANIAN, S/O. KARUPPAN, MARUVAKKAT HOUSE, PANTHALLOOR VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. MR.SUNNY MATHEW RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------- THE EXCISE INSPECTOR, VADAKARA EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.5175/2003 IN CRRP. NO.1256/2003 DISMISSED 29/10/2009 SD/- P.Q.BARKATH ALI, JUDGE TRUE COPY P.S. TO JUDGE tss P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 1256 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 29th day of October, 2009 O R D E R Revision petitioners are the accused in C.C.No.726 of 1996 of the Judicial Magistrate of the First Class, Vadakara and the appellants in Crl.A.No.277 of 1999 of the Sessions Court, Kozhikode Division. They were convicted under under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules and sentenced to undergo simple imprisonment for six months each and to pay fine of Rs.25,000/- each, in default to undergo simple imprisonment for six months each. On appeal, the conviction and sentence of the accused persons were confirmed. Now the they have come up in revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court is that on June 22, 1996 at 5.30 P.M. the accused were found transporting Indian Made Foreign Liquor without permit in KL-10-1254 jeep in the National highway at Onchiyam and that thereby committed the offences punishable under section 55(a) and rule 9 of the Foreign Liquor Rules. Crl.1256/03 2 3. The accused on appearance before the trial court pleaded not guilty to charge under section 55(a) and rule 9 of the Foreign Liquor Rules. PWs.1 to 4 were examined and Exts.P1 to P3 were marked on the side of the prosecution. Mos.1 to 8 were also produced by the prosecution before the trial court. When questioned under section 313 Cr.P.C. by the trial court, the accused persons denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of the evidence, found the accused/revision petitioners guilty of the offences punishable under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules and convicted them thereunder and sentenced them as aforesaid. The lower appellate court confirmed their conviction and sentence. Now the accused have come up in revision. 5. The following questions arise for consideration: 1) Whether the conviction of the revision petitioners under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules rendered by the trial court which was confirmed in appeal can be sustained? Crl.1256/03 3 2) Whether the sentence imposed is excessive and unduly harsh? 6. PWs.1 to 4 were examined on the side of the prosecution. PW1 is the then Excise Inspector, Vadakara. PW2 is the then Excise Inspector, Thamarassery. They testified before the court that at about 5.30 P.M. on June 22, 1996 while they were on patrol duty and when they reached at the National Highway in front of the house of one Punathil Aboobacker at Onchiyam, they found the offending jeep coming from Thalassery side and on suspicion, they searched the vehicle and found 14 bottles of King George Special grape brandy of 750 mnl. each in the tool box and when bonnet was opened, it contained a cardboard box containing one bottle of King George special brandy of 180 ml. and 48 bottles of Royal Gold Cup Whisky of 180 ml. each and a sack containing 22 bottles of rum of 750 ml. each. PW1 arrested the accused and registered the case. He prepared the mahazar. 7. I have gone through the evidence of PWs.1 and 2. Nothing was brought out in cross-examination to discredit their evidence. Their evidence clearly proves the search and seizure of the contraband article from the jeep of the accused persons. PW3 Crl.1256/03 4 is an independent witness to the seizure. He turned hostile and did not support the prosecution. PW4 is the Excise Inspector who laid the charge. 8. The next question is whether the charge under section 55(a) of the Abkari Act will lie against the accused. Two persons were found transporting 85 litres of Indian Made Foreign Liquor in their vehicle. In such cases the charge under section 55(a) of the Abkari Act will lie against the accused as held by a Single Jude of this Court in Kelukutty V. State of Kerala (2009(4) KLT 286). For all these reasons, I confirm the conviction of the revision petitioners under section 55(a) of the Abkari Act and rule 9 of the Foreign Liquor Rules. 9. As regards the sentence, the incident occurred during 1996. Taking into that aspect and in the circumstances of the case, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.25,000/- each, in default to undergo simple imprisonment for six months each would meet the ends of justice. 10. In the result revision petition is allowed in part. The conviction of the revision petitioners under sec.55(a) of the Crl.1256/03 5 Abkari Act and rule 9 of the Foreign Liquor Rules rendered by the trial court, which was confirmed by the lower appellate court is upheld. The sentence is modified to the effect that the revision petitioners are sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.25,000/- each, in default to undergo simple imprisonment for six months each. Four months' time is granted to pay the fine. Their bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE mn Crl.1256/03 6 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P.No. 1256 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 29th day of October, 2009