IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3329 OF 2007() ------------------------------ CRA.429/2004 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGOD SC.574/2000 of ASSISTANT SESSIONS COURT, HOSDURG .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------- GANGU @ GANGADHARAN K.P., S/O.PONNAPPAN, AGED 41 YEARS, BILAL NAGAR, MOUVAL DESOM, PALLIKKARA VILLAGE, HOSDURG TALUK. BY ADV. SRI.M.SANTHOSHKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------- THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE IN CR.NO.34/98, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3329 OF 2007 ------------------------------------------ Dated this the 28th day of November, 2008 O R D E R Revision petitioner was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for three months for the offence under section 8(2) of Kerala Abkari Act in S.C.574 of 2000 by Assistant Sessions Court, Hosdurg. The conviction and sentence were confirmed by Additional Sessions Court, Kasaragod in Crl. Appeal 429 of 2004. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 23.9.1998 at about 11.30 a.m. petitioner was found transporting 195 packets of Karnataka made arrack enclosed in MO1 plastic sack along the public road proceeding towards Pallikkara ice plant from railway gate Pallikkara, when PW1 Excise Inspector along with PW6 the Excise Guard were proceeding along the road. On getting suspicion revision petitioner was intercepted and the sack was CRRP3329/07 2 opened. It was found that 195 small polythene packets containing 100 ml each of Karnataka brand arrack were in the sack. PW1 opened one of the packets and tasted it and getting satisfied that it is arrack revision petitioner was arrested. MO1 sack containing polythene packets were seized. Three polythene packets were opened and the contents were poured in a 350 ml bottle and was sealed. The remaining MO2 series of 192 packets were enclosed in MO1 plastic sack and sealed. MO3 the three packets emptied were separately packed. Ext.P2 seizure mahazar was prepared as well as Ext.P1 arrest memo. Along with revision petitioner they proceeded to the Excise Office and on reaching prepared Ext.P3 occurrence report and registered the crime. Revision petitioner along with MOs 1 to 3 and the sample prepared were produced before the Magistrate. Based on the forwarding note, sample was sent to chemical laboratory and obtained Ext.P7 report. Ext.P6 site plan was got prepared by PW4 Village Officer. Charge was laid and case was committed. When charge for the offence under section 8(2) was framed and read over to him, he pleaded not guilty. Prosecution examined six witnesses and marked seven exhibits and identified MOs 1 to 3. Learned Sessions Judge thereafter called revision CRRP3329/07 3 petitioner to adduce defence evidence. He did not adduce evidence. Assistant Sessions Judge thereafter convicted the petitioner and hearing him on the question of sentence awarded the sentence. Though petitioner challenged the conviction in appeal, learned Sessions Judge on reappreciation of evidence confirmed the same. The argument of the learned counsel is that even though PWs 1 and 6 claimed that MO1 sack was sealed at the scene of seizure, when it was identified by PW1 from the box there was no seal and therefore there is no guarantee that MO2 series of 192 polythene packets were the polythene packets allegedly seized from the revision petitioner and therefore Courts below were not justified in convicting revision petitioner. It was also argued that when PW2, the independent attesting witness to Ext.P2 mahazar turned hostile, Courts below should not have relied on the evidence of PWs 1 and 6 to find that petitioner was transporting arrack and therefore the conviction is not sustainable. Learned counsel finally submitted that in any case sentence awarded is excessive. 4. Though learned counsel challenged the evidence of PWs 1 and 6, the Assistant Sessions Judge, who had the opportunity to note the demeanour of the witnesses as well as CRRP3329/07 4 learned Sessions Judge appreciated the evidence in the proper perspective and found their evidence credible and reliable. The fact that PW2, the attesting witness to Ext.P6 recovery mahazar, after admitting signature in Ext.P2 turned hostile to prosecution does not mean that, either evidence of PWs 1 and 6 are to be disbelieved or that the case of revision petitioner that he was not arrested at the spot and he was not in possession of MOs 1 to 3 is to be accepted. There is no law or rule that evidence of an Excise Inspector or Excise Guard is either to be disbelieved or viewed with suspicion. Though PW1 was cross- examined, nothing was brought out to disbelieve his evidence. Similarly, in spite of cross-examination, evidence of PW6 is found credible and reliable. Evidence of PW6 corroborates the evidence of PW1. Their evidence is further corroborated by Ext.P2 the contemporaneous record prepared at the scene of seizure. Courts below on appreciation of evidence rightly found that petitioner was transporting MO2 series of polythene packets along with MO3 polythene packets containing spirit, enclosed in MO1 sack on 23.9.1998 at about 11.30 a.m. along the road near to railway gate of Pallikkara. The evidence also establishes that out of the 195 packets found inside MO1 sack, CRRP3329/07 5 the MO3 packets (three in number) were opened and sample was prepared and it was also sealed. The property list produced in Court corroborates the evidence that the sample bottle along with MOs 1 to 3 were produced before the Magistrate on the same day. The evidence also establish that on the request of the prosecution, sample was forwarded to the chemical laboratory. Ext.P7 report establishes that the sample contained ethyl alcohol. Therefore absence of seal in MO1 sack at the time of recording evidence of PW1, is not very material. Even if MO2 series are not found to be the polythene packets which was seized enclosed in MO1 sack, under Ext.P2, evidence establish that sample bottle was prepared by pouring contents of the three polythene packets which were opened at the scene. Ext.P7 report establishes that those three polythene packets contained spirit. Thus prosecution conclusively established that petitioner was transporting spirit in violation of the provisions of section 8(1) which is an offence punishable under section 8(2) of Abkari Act. Conviction of the petitioner for the offence under section 8(2) of the Abkari Act is perfectly legal. 5. Then the only question is regarding the sentence. The total quantity is 19.5 litres of spirit. Sub section (2) of CRRP3329/07 6 section 8 of the Act provides a minimum sentence of fine of Rs.1,00,000/- and imprisonment which may extend to two years. Learned Assistant Sessions Judge awarded only a sentence of imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for three months. Set off as provided under section 428 of Code of Criminal Procedure was also granted. In such circumstances I find no reason to interfere with the sentence also. Revision is dismissed. The Assistant Sessions Judge, Hosdurg is directed to execute the sentence. M. SASIDHARAN NAMBIAR, JUDGE Okb/-