IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 Crl.Rev.Pet.No. 970 of 2010() ----------------------------- CRA.85/2007 of ADDL. SESSIONS COURT (ADHOC), THRISSUR SC.545/2005 of ADDL. ASSISTANT SESSIONS COURT, IRINJALAKUDA .................... REVN. PETITIONER: ---------------------------------------- ASOKAN,S/O.KUTTAN,MARIKKAL HOUSE, KODASSERY VILLAGE,MANALI DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.R.DHANIL RESPONDENT(S): ----------------------------- 1. EXCISE INSPECTOR, CHALAKUDY RANGE, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = Crl.R.P.No.970 of 2010 = == = = = = = = = = = == Dated: 26.03. 2010 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in S.C. No. 545 of 2005 on the file of the Additional Assistant Sessions Court, Irinjalakuda for an offence under Section 8(1) and punishable under Section 8(2) of the Abkari Act, challenges the conviction entered and the sentence passed against him for the said offence. 2. The case of the prosecution can be summarised as follows: On 7.9.2003 while PW1, the Excise Range Inspector, Chalakudy along with his patrol party consisting of PW2, Preventive Officer was proceeding within his range at about 7.30 p.m, they stumbled upon the accused coming along the road near the Public Distribution Centre. The accused was carrying a jerry can. Seeing the jeep of the excise party the accused made an attempt to make himself scarce. The Excise party restrained the accused and took the jerry can from his possession. It was found to contain some liquid which was suspected to be illicit arrack from smell and taste. Crl.R.P.No.970/2010 -:2:- The accused was arrested and after drawing a sample of 375 ml from the jerry can into a bottle, labeling and sealing the same PW1 seized the contraband liquor along with the sample bottle under Ext.P1 Mahazar to which PWs.3 and 4 affixed their signature as attestors. The Excise party then proceeded to the Excise Range Office, Chalakudy along with the accused and seized contraband and documents and registered a case as Crime No.53 of 2003 of Excise Range, Chalakudy for an offence punishable under Section 8(2) of the Abkari Act. The properties were produced before the J.F.C.M, Chalakudy on 7.9.2003 and since there was no sitting on that day the properties were directed to be produced on the working day thereafter. The properties were accordingly produced on the next working day. On 16.9.2003 after retaining the sample bottle, MO1 can containing the bulk quantity was directed to be returned to the charging officer with direction to produce the same in Court during trial. During the course of investigation, PW5, the Excise Inspector, Chalakudy submitted Ext.P6 forwarding note for sending the sample bottle to the Chief Examiner for analysis. Ext.P7 is the certificate of chemical analysis, which shows that the said sample contained 40.26% volume of Crl.R.P.No.970/2010 -:3:- Ethyl Alcohol thereby confirming that MO1 black jerry can carried by the accused contained 2 litres of arrack. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.Ws. 1 to 5 and got marked 8 documents as Exts. P1 to P8 and a black jerry can as M.O.1. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. The accused examined a neighbour as DW1 and got marked property through PW1. 5. The learned Additional Assistant Sessions Judge, Irinjalakuda, after trial, as per judgment dated 10.01.2007 found the revision petitioner guilty of the offence and sentenced him Crl.R.P.No.970/2010 -:4:- to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and on default to pay the fine to suffer rigorous imprisonment for six months. On appeal preferred by the revision petitioner before the Sessions Court, Thiruvananthapuram as Crl.Appeal No.85/2007, the learned Additional Sessions Judge (Fast Track), Thrissur as per judgment dated 8.09.2009 confirmed the conviction entered but reduced the sentence of rigorous imprisonment to six months. The fine portion of the trial court's order was not interfered with. It is the said judgment which is assailed in this Revision. 6. I heard the learned counsel appearing for the revision petitioner as also the learned Public Prosecutor. I have also perused the records of the lower court. 7. The learned counsel for the petitioner made the following submissions before me in support of the revision. Eventhough detection and seizure were effected on 7.9.2003, the properties were produced before court only on 16.9.2003. There is inordinate delay in the production of properties. PWs.3 and 4 who are Crl.R.P.No.970/2010 -:5:- independent witnesses to the seizure mahazar have turned hostile to the prosecution. DW1 the neighbour of the accused has deposed before court that the accused was arrested from his house and not from the scene as spoken to by PWs.1 and 2. The property list was not marked by the prosecution and the accused therefore got it marked through PW1 as Ext.D1. The conviction entered and the sentence passed against the revision petitioner, overlooking the above aspects cannot be sustained. 8. I am afraid that I cannot agree with the above submissions. PWs.1 and 2 have credibly deposed in terms of the prosecution case. No sort of enmity or bad motive was attributed to both the Excise officials so as to falsely implicate the revision petitioner. It is not true that the properties were produced before the court on 16.09.2003. The properties were in fact produced before the J.F.C.M, Chalakudy on 7.9.2003 itself. But there was no sitting on that day and the charging officer was directed to produce the property before the court on Crl.R.P.No.970/2010 -:6:- the next working day. That was complied with. 16.9.2003 is the date on which MO1 jerry can was entrusted with the Excise Inspector for his custody since there was no sufficient space in the property room of the Magistrate Court for storing MO1. 9. It is true that PWs.3 & 4 the independent witnesses to Ext.P1 seizure mahazar turned hostile to the prosecution. Independent witnesses to Seizure mahazars turning unfriendly to the prosecution in abkari cases is not a rare phenomenon. Courts are familiar with such witnesses. So long as the testimony of the official witnesses does not contain anything to suspect any bad motive, courts are entitled to place intrinsic reliance on their testimony. Both the courts below have concurrently found that the petitioner was found in possession of MO1 can containing the illicit arrack. The sample drawn from the bulk quantity was forwarded to the chemical expert in a tamper proof condition and the contents were found to contain 40.20% by volume of Ethyl Alcohol. The conviction was rightly recorded against the revision petitioner and the same is confirmed. Crl.R.P.No.970/2010 -:7:- 10. The sentence imposed by the lower appellate court by reducing the rigorous imprisonment for one year to six months also cannot be said to be harsh or disproportionately excessive, having regard to the fact that the petitioner was found in possession of two litres of illicit arrack. Arrack has been totally banned in the State from 03.06.1997 onwards. Contraband arrack is a substance which causes deleterious effect on the human system. It has ruined several families. It was after noticing the bad effects of illicit arrack that the State imposed a total ban on arrack in the year 1997. Persons who indulge in transporting , possession, sending etc. of arrack do not deserve any sympathy. I am not inclined to hold that the sentence imposed on the revision petitioner by the lower appellate court is harsh. Hence the sentence is also liable to be confirmed. In the result, this Revision is dismissed confirming the conviction entered and the sentence passed on the revision petitioner. V.Ramkumar, Judge. sj