IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.Rev.Pet.No. 1406 of 2001() ------------------------------ CRA.243/1998 of SESSIONS COURT, KASARAGOD CC.709/1996 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- ARIYAKKADAVATH SANTHA W/O BHASKARAN, AGED 38 YEARS ARIYAKKADAVU DESOM, KAYOOR VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- STATE - REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1406 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.709/1998 of Judicial First Class Magistrate Court II, Hosdurg and appellant in Crl.Appeal No.243/1998 of Sessions Court, Kasargod. She was convicted under Section 58 of Abkari Act and was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 15,000/-, in default, to undergo rigorous imprisonment for one month by the trial court which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on October 21, 1995 at about 12.30 p.m., she was found to be in possession of 2 litres of illicit arrack in Kayyoor village and that thereby committed the offence punishable under Section 58 of the Akbari Act. 3. The accused on appearance before the trial court pleaded Crl.R.P.No.1406/01 Page numbers not guilty to a charge under Section 58 of the Abkari Act. PWs 1 to 3 were examined and Exts.P1 to P3 were marked and MO1 was produced by prosecution before the trial court. When questioned under Section 313Cr.P.C by the Magistrate, the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 58 of the Abkari Act, convicted her thereunder and sentenced her as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 58 of the Abkari Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P.No.1406/01 Page numbers Point No.1 6. PWs 1 to 3 were examined and Exts.P1 to P3 were marked on the side of prosecution before the trial court. PW2 is the preventive officer attached to Excise Range office, Neeleswaram who detected the offence from Kayyoor village. According to him, he found the accused walking against him holding a can and on examination it was found to contain 2 litres of illicit arrack. I have gone through his evidence. Nothing was brought our during his cross examination to discredit his evidence. PW2 has absolutely no enmity towards the accused to foist a false case against her. Further the accused was caught red-handed with the contraband articles. The evidence of PW2 was not shaken in cross examination on this aspect . I find no reason to suspect his credibility or to disbelieve him. 7. PW1 is an attestor to mahazer - Ext.P1. He also witnessed the seizure of contraband articles from the accused. Though he gave a different story during cross examination, he supported the version of PW2 regarding the seizure of the contraband article from the accused. His evidence was not shaken in cross-examination. Further he has no Crl.R.P.No.1406/01 Page numbers motive to implicate the accused. For all these reasons, I am of the view that the trial court court as well as the lower appellate court is perfectly justified in believing the evidence of PW1 and PW2 and coming to the conclusion that on October 21, 1995 at about 12.30 p.m., the accused was found to be in possession of 2 litres of illicit arrack in Kayyoor village as alleged by prosecution. That being so, the conviction of the revision petitioner under Section 58 of the Abkari Act by the trial court which is confirmed in appeal has to be confirmed. Point No.2 8. As regards the sentence, the revision petitioner was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 15,000/-, in default, to undergo rigorous imprisonment for one month by the trial court which is confirmed in appeal. The accused is a lady. Further the incident occurred on October 21, 1995. Taking into consideration all these aspects, I feel that imprisonment till the rising of court and a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for one month would meet the ends of justice. Crl.R.P.No.1406/01 Page numbers In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 58 of the Abkari Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that she is sentenced to imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for one month. Her bail bonds are cancelled. One month's time is granted for payment of fine amount. The revision petitioner shall surrender before the trial court on or before 31-11-2009 to receive the sentence. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1406/01 Page numbers Crl.R.P.No.1406/01 Page numbers