IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Crl.Rev.Pet.No. 290 of 2001(B) ------------------------------------------- CRL.A.NO.267/1997 OF SESSIONS COURT, ALAPPUZHA, CC.NO.308/1996 OF JUDL.MAGISTRATE OF FIRST CLASS, RAMANKARI. .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- SUGUNAN, S/O. MADHAVAN, ARUPARAYILCHIRAYIL VEEDU, CHAMPAKULAM PANCHAYAT, WARD NO.6, THEKKEKARA. BY ADVS. MR.C.K.VIDYASAGAR, MR.P.CHANDY JOSEPH. RESPONDENTS/RESPONDENTS/STATE/COMPLAINANT: ---------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, KUTTANADU RANGE. R1 & R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 290/2001-B: ORDER ON CRL.M.P. NO. 1221/2001 IN CRL.R.P. NO. 290/2001. DISMISSED 18/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.290 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.308/96 of Judicial First Class Magistrate Court, Ramankary and appellant in Crl.Appeal No.267/1997 of Sessions Court, Alappuzha. He was convicted under Section 55(a) of Abkari Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default, to undergo simple imprisonment for three months by the trial court which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court in brief is that on January 5, 1996 at about 7.30 pm, the accused was found to be in possession of 5 litres of illicit arrack in Aruparachira house situated in ward No.6 of Champakulam panchayat and that thereby committed the offence punishable under Section 55(a) of Abkari Act. 3. The accused on appearance before the trial court pleaded Crl.R.P.No.290/2001 Page numbers not guilty to a charge under Section 55(a) of Abakri Act. PWs 1 to 5 were examined and Exts.P1 to P7 and MOs 1 and 2 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C., the accused denied the incident and submitted that he is an employee of arrack contractor and because of the rivalry between the contractor and the Excise Inspector he has been falsely implicated in this case. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 55(a) of Abkari Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Head the learned counsel for the revision petitioner and the learned Public Prosecutor for the state. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(a) of Abkari Act rendered by the trial court which is confirmed in Crl.R.P.No.290/2001 Page numbers appeal is sustainable ? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh ? Point No.1 7. PWs 1 to 5 were examined and Exts. P1 to P7 were marked on the side of the prosecution to prove the guilt of the accused. PW4 is the Head Constable attached to Pulincunn Police Station. PW5 is the Sub Inspector therein. They testified in terms of the prosecution case that on January 5 , 996 while they were on petrol duty on receiving information, they went to the house of the accused and searched there found MO1 jerry can with 5 litres of illicit arrack and two glasses. Those were seized from there and taken to the police station. Ext.P4 is the search memo. Ext.P6 FIR was prepared by PW5. 8. PW1 is the Excise Inspector of Kuttanad who prepared the occurrence report Ext.P1 and laid the charge. PWs 2 and 3 the independent witnesses turned hostile and did not support the prosecution. The evidence of PWs 4 and 5 clearly prove the search and seizure of contraband articles from the house of the accused. Ext.P3 is Crl.R.P.No.290/2001 Page numbers the certificate issued from Champakulam grama panchayat showing that the accused is the owner of the said house. No serious discrepancies or inconsistencies were brought out during their cross examination to discredit their evidence. Both the courts below have chosen to believe their evidence. I find no special reason to come to a different conclusion. No evidence was adduced by the accused to prove his case that he was falsely implicated in this case. Thus the evidence of PWs 4 and 5 clearly shows that the accused was found in possession of 5 litres of illicit arrack in his house in Ward No.6 of Champakulam panchayat. 9. The next question is whether the charge under Section 55(a) will lie against the accused. The incident occurred on 5-1-1996. During that period arrack was not banned. Section 55(a) of Abkari Act comes into operation only when an individual was in possession of illicit arrack knowing that the said arrack was illegally transported or manufactured. There is no evidence to prove the above aspect in this case. Mere possession of illicit arrack will come within the mischief of Section 58 of Abkari Act. Therefore the conviction of the revision Crl.R.P.No.290/2001 Page numbers petitioner under Section 55(a) of Abkari Act has to be set aside and he has to be convicted under Section 58 of Abkari Act. Point No.2 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for three months under Section 55(a) of Abkari Act. Now I have converted the conviction to Section 58 of Abkari Act. During the relevant period the punishment prescribed under Section 58 of Abkari Act was fine which shall not be less than Rs. 15,000/- and imprisonment for a term which may extent to one year . The accused is now aged 70. Further the incident occurred on 5-1-1996. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 5000/- would meet the ends of justice. In the result, revision petition is allowed in part. conviction of the revision petitioner under Section 55 (a) is set aside. He is convicted under Section 58 of Abkari Act. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to Crl.R.P.No.290/2001 Page numbers pay a fine of Rs. 5000/-, in default, to undergo simple imprisonment for three months. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. His bail bonds are cancelled. Two month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.290/2001 Page numbers