IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 Crl.Rev.Pet.No. 39 of 2008() ---------------------------- CRA.211/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA SC.218/2001 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- KUNHUKUTTAN @ RAMESH, S/O. RAMANKUTTY, MOOTHEDAM, KADALAD DESOM, MOOPAINADU DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.39 of 2008 ------------------------------------- Dated this the 8th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction in a prosecution under the provisions of the Kerala Abkari Act. The crux of the allegations against the petitioner is that on 28.01.2000 at 5.30 p.m, he was found to keep in his possession and transport 5 litres of illicit arrack in a plastic can near Kadalad junction and thereby he is alleged to have committed offences punishable under Section 55 (a) of the Kerala Abkari Act. 2. ognizance was taken on the basis of a report filed by the Investigating Officer. The accused denied the charges levelled against him and thereupon the prosecution examined Pws 1 to 6 and proved Exts.P1 to P7. M.Os 1 and 2 were also marked. Pws 1 and 2 are officials in the party which detected the crime. Ext.P1 is the seizure mahazer prepared. Ext.P2 is the crime and occurrence report and Ext.P3 is the arrest memo. Pws 3 and 4 are attestors to Ext.P1 seizure mahazer. They turned hostile. The went to the extent of asserting that they had not affixed their signatures on Ext.P1. Pws 5 and 6 are the excise Crl.R.P.No.39 of 2008 2 officials who had roles to play in the registration of the crime, its investigation and the filing of the charge sheet. Ext.P4 is the property list sent to court. Ext.P5 is forwarding note and Ext.P7 is report of the Chemical Examiner. Ext.P6 is the scene mahazer prepared. M.O 1 is the container in which the contraband article was allegedly carried by the accused. M.O 2 is a glass tumbler which was seized from his possession. 3. Accused took up a defence of total denial. He did not adduce any defence evidence. 4. The courts below concurrently came to the conclusion that the oral evidence of Pws 1 and 2, which is duly supported by the contemporaneous seizure mahazer-Ext.P1 can safely be accepted and acted upon. Accordingly they accepted the oral evidence of Pws 1 and 2. The trial court did not convict the accused under Section 55(a) of the Kerala Abkari Act, but convicted the accused under Section 58 of the Kerala Abkari Act. On the same findings, the appellate court came to the conclusion that an offence under Section 8 of the Kerala Abkari Act has been revealed. The petitioner hence faces the sentence of R.I for a period of one year and to pay a fine of Rs.1 lakh and in default to undergo S.I for a period of 3 months. 5. Called upon to explain the nature of challenge which Crl.R.P.No.39 of 2008 3 the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner has trained all the guns against the concurrent finding that the evidence of Pws 1 and 2 can safely be accepted. The learned counsel for the petitioner relies on various circumstances to contend that the oral evidence of Pws 1 and 2 should not have been accepted. 6. I must alertly remind myself that I am at the third tier of criminal litigation and I am called upon to exercise the revisional jurisdiction of superintendence and correction. Unless the facts are grossly erroneous and lead to miscarriage of justice, such revisional jurisdiction shall not be ordinarily invoked. 7. Pws 1 and 2 are public officials. It is their duty to detect offences and bring the offenders to book. They are interested in the successful outcome of the prosecution. But such interests is interest which any conscientious public officer is bound to and expected to have in the successful prosecution of the offences detected by him. It is significant that there is no contention raised even that Pws 1 and 2 had any animus or motive against the accused to implicate him falsely. The evidence of PWs 1 and 2 is eminently supported by the contents of contemporaneous Ext.P1 seizure mahazer prepared at the scene of the crime. It is true that PW3 and PW4 had turned Crl.R.P.No.39 of 2008 4 hostile to the prosecution. They had gone to the extent of denying their signatures in Ext.P1. It is not uncommon in criminal courts in India to witness such fraudulent hostility against the prosecution by the attestors to the seizure mahazers. I am satisfied that both courts have considered the hostility of Pws 3 and 4 and have rightly come to the conclusion that such hostility of Pws 3 and 4 cannot in any way affect core of the oral evidence of Pws 1 and 2, which is eminently supported by the contents of the contemporaneous Ext.P1 seizure mahazer. 8. The learned counsel for the petitioner relies on various alleged incongruities and inconsistencies in the evidence of PWs 1 and 2. Where was the jeep stopped ? When did the excise party start walking ? Where exactly did the officials first spot the accused ? How was the accused moving at the time when he was first seen by the excise party ? At what precise point and at what distances was he available when Pws 1 and 2 saw him ? According to me the alleged incongruities and inconsistencies of which much is attempted to be made by the learned counsel for the petitioner are all innocent and any innocuous inconsistencies which do not affect the core of the testimony of Pws 1 and 2. I am of the view that the oral evidence of Pws 1 and 2 can be accepted and it does not warrant interference. Crl.R.P.No.39 of 2008 5 9. The allegation initially was under Section 55(a) of the Kerala Abkari Act. The trial court had found the accused guilty under Section 58 of the Kerala Abkari Act, whereas the appellate court modified the conviction to one under Section 8 of the Kerala Abkari Act. The alteration of conviction is found to be absolutely justified. I must note that the allegations at the first instance was that the petitioner was transporting contraband liquor. He was moving with the article in question. The said finding of fact can entail conviction under Section 55(a) or under Section 8 of the Kerala Abkari Act. The appellate court had entered conviction under Section 8 of the Kerala Abkari Act. I am satisfied that the said conviction does not warrant interference. 10. It is contended that the sentence imposed is excessive. 5 litres of arrack only was seized from the possession of the petitioner. The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. 11. Statute prescribes the minimum fine to be imposed and only such minimum fine has been imposed. Default sentence has been modified by the appellate court and the petitioner faces the default sentence of S.I for a period of 3 months only. The said default sentence is also found to be absolutely justified. Coming to the substantive sentence of imprisonment, I am satisfied that Crl.R.P.No.39 of 2008 6 leniency can be shown on the question of substantive sentence of imprisonment imposed. I am satisfied that the substantive sentence of imprisonment can be modified and reduced to R.I for a period of 3 months. The challenge in this revision petition can succeed only to the above extent. 12. In the result: a) This Crl.R.P is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Section 8 of the Kerala Abkari Act imposed by the appellate court are upheld; c) But the substantive sentence of imprisonment imposed is modified and reduced from R.I for a period of one year to R.I for a period of 3 months. The sentence of fine and the default sentence are upheld. 13. The petitioner shall appear and his sureties shall produce him before the learned Additional Sessions Judge for execution of the modified sentence hereby imposed on or before 01.03.2008 to serve the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.39 of 2008 7