IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.Rev.Pet.No. 2585 of 2009() ------------------------------ CRA.293/2007 of ADDL.SESSIONS COURT, FAST TRACK COURT NO.III(ADHOC), MANJERI SC.498/2006 of ASSISTANT SESSIONS COURT, TIRUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- CHATHAN, S/O.THAMI PULLANKAYIL HOUSE, NANNAMUKKU AMSOM KALLORMA DESOM, PONNANI TALUK. BY ADV. SRI.BABU S. NAIR RESPONDENT(S)/RESPONDENT/STATE: --------------- THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, PERINTHALMANNA EXCISE RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31 PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2585 of 2009 -------------------------------------- Dated this the 20th day of August, 2009. ORDER Petitioner is accused in S.C.No.498 of 2006 of the court of learned Assistant Sessions Judge, Tirur. He faced trial for offence punishable under Section 8(1) of the Abkari Act (for short “the Act”) for alleged possession of about five litres of illicit arrack. He was sentenced to undergo rigorous imprisonment for one year and payment of fine of Rupees one lakh with a default sentence of imprisonment for three months. Appellate court confirmed the conviction and sentence. Contention urged in this revision petition is that conviction and sentence of petitioner are not legal and proper. 2. Case is that on 24.8.2005 at about 6 p.m. petitioner was seen on the public road in front of the petty shop of Pradeep carrying the contraband in a plastic can. PW1, Preventive Officer is said to have detected the offence. PW2 is the guard who is said to have accompanied him on patrol duty at the relevant time. Evidence of PWs 1 and 2 is that on the relevant day and time at the place of occurrence they found petitioner going along public road carrying plastic can which on examination was found to contain five litres of illicit arrack. PW1 drew sample from the contraband and the same as well as the rest were packed, sealed, labeled and taken to custody. According to PWs 1 and 2, petitioner was arrested at the spot and his relatives were informed about the Crl.R.P.No.2585/2009 2 arrest. Ext.P3 is the mahazar for seizure of material objects. Ext.P1 is the arrest memo and Ext.P2, arrest notice given to the relatives of petitioner. PWs 1 and 2 identified MO1, plastic can in which petitioner was allegedly carrying the controband. PW3, independent witness and attestor in Exts.P1 and P3 while admitting that he signed those documents denied witnessing the incident. PW5 produced petitioner and the material objects before learned magistrate. PW4 is the guard who is said to have taken the sample from the court to the laboratory for chemical examination. Ext.P6 is the report of chemical examination which stated that the sample contained ethyl alcohol in the percentage stated therein. PW6 conducted investigation of the case. 3. Contention advanced is that there is no reliable evidence to prove the alleged incident. It is true that PW3 has not supported the prosecution but it has come in evidence that he belonged to the locality to which petitioner belonged. He has admitted his signature in Exts.P1 and P3. Evidence regarding detection of offence, seizure of the material objects and arrest of petitioner is given by PWs 1 and 2. Material objects are produced in court without delay. On going through the judgments under challenge and hearing learned counsel for petitioner and Public Prosecutor, I do not find reason to interfere with the conviction of petitioner. 4. It is submitted by learned counsel that petitioner has already undergone detention for a month following his arrest on 24.8.2005. Learned Crl.R.P.No.2585/2009 3 counsel submitted that petitioner is a labourer now aged 58 years and the only bread winner of the family. Learned counsel requested that leniency may be shown to the petitioner in the matter of sentence. 5. It is not shown that petitioner is involved in any other case. Petitioner has undergone detention for a month. He was arrested on 24.8.2005 and released on 24.9.2005. Having regard to the facts and circumstances of the case and considering the situation in which petitioner is placed and the fact that he is not shown to be involved in any other case I am inclined to think that sentence of imprisonment can be confined and limited to the period of detention already undergone by him. Default sentence for non-payment of fine is modified as simple imprisonment for fortyfive (45) days. Resultantly, this revision petition is allowed to the following extent: i. Substantive sentence awarded to the petitioner is modified and confined to the period of detention already undergone by him from 24.8.2005 to 24.9.2005. ii. Default sentence for non-payment of fine is modified as simple imprisonment for fortyfive (45) days. iii. Petitioner is granted two months’ time from today to deposit fine in the trial court. Crl.R.P.No.2585/2009 4 In case of failure petitioner shall appear in the trial court on 22.10.2009 to receive the default sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks