IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 741 of 2009() ----------------------------- CRA.301/2007 of ADDL.SESSIONS JUDGE (ADHOC-II), MANJERI SC.99/2007 of ASSISTANT SESSIONS COURT, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- HARIDASAN @ ARAVINDAKSHAN, AGED 27 YEARS, S/O.ITHARI, OLAVATTOOR AMSOM, PULIKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENT/STATE ------------------------------- THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MALAPPURAM - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.741 of 2009 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Heard counsel for petitioner and the Public Prosecutor. 2. As concurrently found by the courts below petitioner stands convicted for the offence punishable under Section 55(g) of the Abkari Act (for short, “the Act”) and sentenced to undergo simple imprisonment for two years and to pay fine of Rupees one lakh. Case is that on 3.10.2005 at about 6 p.m. petitioner was found possessing about 45 litres of wash together with the utensils, etc. meant for illicit distillation of arrack on the terrace of his house. The offence is said to be detected by the Excise Inspector. Prosecution examined PWs 1 to 9 and marked Exts.P1 to P8 and MOs 1 to 4. 3. PW5 is the Excise Inspector who is said to have detected the offence. PW6 is his subordinate officer, said to have been present with PW5 at the time of detection. Their evidence is that while on patrol duty on the relevant day PW5 got information that petitioner is engaged in illicit distillation of arrack in his house. Thereon, PW5 prepared search memo. PW5 and party including PW6 came to the house of petitioner and found him watching th excise officials approaching the house, standing on the terrace of his house. There was no permanent ladder or staircase to reach the terrace and hence, PWs 5 and 6 collected a ladder from nearby and went upto the terrace and found wash Crl.R.P.No.741/2009 2 and the utensils on the terrace. They found that the palm of the petitioner was wet and had smell of wash. PW5 collected sample from the wash and the same along with the utensils and other materials were taken to custody. The materials and utensil also were taken into custody. Ext.P6 is the mahazar for seizure. The rest of the wash was destroyed. PWs 5 and 6 identified MO1 series to MO4, the articles seized from the terrace. They also claimed that petitioner was arrested at spot. Ext.P7 is the arrest memo. Ext.P8 is the notice of arrest. PW7, an attester in Ext.P6, mahazar did not support the prosecution but admitted his signature in Ext.P6. PW8, another attester claimed that he accompanied the excise party as requested by the latter to the house of the petitioner. He supported the version of PWs 5 and 6. PW8 stated that petitioner was seen on the terrace of his house. Wash and utensils were seen on the terrace. Petitioner was arrested and the articles were seized. PW5 stated that the material objects and records produced in the excise office were received by the guard on duty. Ext.P1 is the crime occurrence report prepared by the Excise Inspector(PW1). He in turn caused the material objects to be produced in court through PW3, guard. PW2, Junior Superintendent of the court concerned received the material objects as per Ext.P2, property list. Ext.P2(a) is the entry in the relevant register maintained in the court. Investigating Officer submitted Ext.P3, forwarding note for sending the sample for chemical examination. Thereon, PW2 as per the order of learned magistrate forwarded the sample for Crl.R.P.No.741/2009 3 chemical examination. PW4, guard produced the sample for chemical examination in the laboratory. Ext.P5 is the covering letter sent from the court and Ext.P4, certificate of chemical examination. As per Ext.P4 the sample was found to contain 11.83% by volume of ethyl alcohol . Relying on the above evidence courts below found that petitioner has kept wash, materials and utensils meant for illicit distilling of arrack and thereby committed the offence punishable under Section 55(g) of the Act. 4. It is contended by learned counsel that there is no evidence to show that petitioner was in possession of the contraband and the utensils. It is also contended that there is no independent evidence regarding the alleged incident. 5. I have referred to the evidence of PWs 5, 6 and 8 concerning the alleged incident. It is true that PW5 or the Investigating Officer has not conducted any investigation as to the ownership or possession of the house in question but, that is of no relevance in this case. Evidence shows that petitioner was standing on the terrace of the house with no permanent ladder or staircase to reach upto there and PW5 and others had to reach the terrace using a ladder collected from elsewhere. That circumstance shows that deliberate attempt was made to prevent outsiders getting upto the terrace of the building while petitioner was remaining there. A further fact revealed from the evidence of Crl.R.P.No.741/2009 4 PWs 5 and 6 is that at the time they reached the terrace the palm of the petitioner was found wet and there was smell of wash. That indicated that petitioner was handling wash which is meant for illicit distillation. PW8 has given evidence that it was the house of the petitioner. Hence failure to enquire about the ownership/possession of the building is not fatal. 6. It is argued that of PWs 7 and 8, PW7 did not support the prosecution and PW8 cannot said to be an independent witness as PW8 had come to the house as requested and along with the excise party. According to PW8, he had accompanied the excise party. I have stated that PW7 while denied to have witnessed the incident, admitted his signature in Ext.P6, mahazar for seizure. I am not inclined to think that because PW8 accompanied the excise party, his independence is lost. There is no reason why the evidence of PWs 5, 6 and 8 is to be discarded. It is not shown that they had any axe to grind against the petitioner. Ext.P6, the contemporaneous record prepared by PW5 corroborated their evidence. Courts below have appreciated the evidence of PWs 5, 6 and 8 and found the petitioner guilty of offence punishable under Section 55(g) of the Act. There is little reason to interfere with the conviction. 7. It is contended by learned counsel that sentence awarded to the petitioner is excessive. Learned counsel requested that leniency may be shown to the petitioner. It is not shown that petitioner is involved in any other case. Petitioner was aged only 25 years at the time of incident. In these Crl.R.P.No.741/2009 5 circumstances, I am inclined to think that simple imprisonment for six months and fine as awarded by the courts below is sufficient in the ends of justice. Resultantly, this revision petition is allowed in part to the extent that the substantive sentence awarded to the petitioner is modified as simple imprisonment for six months. In other respects this revision will stand dismissed. Crl.M.A.No.2186 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks