IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 152 of 2002() ----------------------------- CRA.94/1999 of SESSIONS COURT, KOZHIKOE CC.515/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVISION PETITIONER: APPELLANT/ACCUSED. --------------------------------------- THANKACHAN, S/O. VARGHESE, KODENCHERRY AMSOM AND DESOM. BY ADV. SRI.SUNNY MATHEW RESPONDENT: RESPONDENT/COMPLAINANT. -------------------------------------- THE EXCISE INSPECTOR, THAMARASSARY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.152 of 2002 -------------------------------------- Dated this the 15th day of October, 2008. ORDER Revision petitioner stands convicted for offence punishable under Section 58 of the Abkari Act (for short, 'the Act') for alleged possession of illicit arrack knowing it to have been illegally imported to the State. Learned magistrate sentenced the revision petitioner to undergo rigorous imprisonment for six months and payment of fine of Rs.15,000/-. In appeal, conviction was confirmed but substantive sentence was modified while retaining the sentence of payment of fine. Revision petitioner is still aggrieved and filed this revision. 2. Heard both sides. 3. Counsel for revision petitioner submitted that evidence let in by the prosecution is not sufficient to warrant conviction and at any rate, conviction has been entered under Section 58 of the Act without framing charge for that offence. Counsel also submitted that sentence imposed is excessive. 4. PW1 filed a complaint against revision petitioner for offence punishable under Section 55(a) of the Act and Rule 9 of the Foreign Liquor Rules alleging that on 15.5.1997 at about 5.30 p.m. revision petitioner was seen importing illicit arrack. PWs 1 and 3, Assistant Excise Inspector who detected the offence and the Guard who accompanied him gave evidence regarding the alleged seizure on the relevant day and place. Ext.P1 is the mahazar said to be prepared by PW1 at the spot. According to PWs 1 and 3, the former collected Crl.R.P.No.152/2002 2 samples from two of the bottles and the same as well as rest were properly sealed, packed and labelled. Labels contained the signature of the revision petitioner also. They claimed to have arrested revision petitioner at the spot. pW2 who is an attestor in Ext.P1 though admitted signing the mahazar refused to support the prosecution. 5. It is seen from the records that material objects were produced in court along with Exts.P2 and P3 on 16.5.1997 itself. There was no challenge to the identify of MO1 series. Ext.P4 shows that the samples contained ethyl alcohol in the percentage mentioned therein. I have gone through the evidence of PWs 1 and 3 and find no reason to disbelieve. Thus, seizure of illicit arrack from the possession of revision petitioner on the relevant day, time and place is proved. 6. The next question is whether conviction under Section 58 of the Act is legal. The complaint was that revision petitioner imported illicit arrack into the State. It would appear that learned Magistrate thought that there is no evidence for such import by the revision petitioner personally and therefore, applied Section 58 of the Act which penalised a person who possessed illicit arrack knowing the same to have been imported. Going by Ext.P1 and evidence of PW 1 , labels on the bottles seized from revision petitioner stated that it was meant Crl.R.P.No.152/2002 3 for sale only in Pondicherry. Therefore, it is clear that the contraband was imported from beyond the State of Kerala. Since the label declaration was specific, I must assume that revision petitioner was aware of that and knowing that it was imported from beyond State, he possessed it. Therefore, I do not find any reason to interfere with the conviction under Section 58 of the Act. 7. So far as the sentence is concerned, revision petitioner has been fighting this case for the last 11 years. It is not shown that he is involved in any other case. Hence, I am satisfied that sentence of fine as ordered by the courts below and imprisonment till rising of the court will be sufficient to meet the ends of justice. Revision Petition is allowed in part in the following lines:- (1) Sentence of fine awarded by the courts below is confirmed. In default of payment of fine, revision petitioner shall undergo simple imprisonment for one month. Crl.R.P.No.152/2002 4 (2) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. Revision petitioner shall surrender in the trial court on 18.12.2008 to suffer the sentence. Bail bond is cancelled. Crl.M.P.No.875 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE. Crl.R.P.No.152/2002 5 Thomas P.Joseph, J. Crl.R.P.No.152 of 2002 ORDER 15th October, 2008