IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 Crl.Rev.Pet.No. 3051 of 2003() ------------------------------ CRA.543/2000 of III ADDL. SESSIONS COURT (ADHOC), FT COURT NO.1 THRISSUR CC.153/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- SUBASH, S/O.PUTHANPURAKKAL BHASKARAN, PAINKULAM VILLAGE, DESOM, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA SRI.VIVEK.JOY.K RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. R. BINDU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON 26/03/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 3051 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2009 O R D E R The revision petitioner is the accused in C.C.No. 153 of 1999 of the Court of the Judicial Magistrate of the First Class, Wadakkancherry. The accused stands charge sheeted by the Sub Inspector of Police, Cheruthuruthy Police Station, alleging the offence punishable under section 55(h) of the Kerala Abkari Act (for short 'the Act'). 2. The allegation against the accused is that on 22.4.1997, at 5.45 p.m., at a place called Mooppan Theruvu in Painkulam Village, the accused was found selling Indian made Foreign Liquor. The offence was detected by CW1. 3. In the trial court, on the prosecution side PWs. 1 to 5 were examined, Exts.P1 to P5 and MOs. 1 and 2 were marked. On considering the evidence, the trial court convicted and sentenced the petitioner to S.I. for a period Crl.R.P.No. 3051 of 2003 2 of six months and to pay a fine of Rs.25,000/- and in default to undergo S.I. for 6 months for the offence under Section 55(h) of the Act. In appeal, Crl.A.No. 543 of 2000, the learned Addl. Sessions Judge (Adhoc) Fast Track Court Mo.1, Thrissur modified the conviction to one under Section 55(i) of the Act and confirmed the sentence. Against that judgment the accused filed this Revision Petition. 4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 5. Normally, the jurisdiction of the High Court in revision has to be exercised only in exceptional cases when there was glaring defect in the procedure or there was manifest error on a point of law, which has consequently resulted in flagrant miscarriage of justice. 6. PW1 is the Sub Inspector of Police, Cheruthuruthy, who detected the offence. He swears that on 22.4.1997 while he was on patrol duty along with one Head Constable and two Police constables, when they reached Painkulam, he received Crl.R.P.No. 3051 of 2003 3 reliable information about the sale of liquor by the accused. PW1 and his police party reached near the house of one Bhaskaran. The accused was found there pouring liquor from a bottle into a glass to another person standing near him. On seeing the police, the other person ran away. PW1 arrested the accused and he was having three bottles of 750 ml. capacity of XXX Rum and two bottles of Mcdowel Rum. Ext.P5 is the F.I.R. and Ext.P6 is the report of the chemical examiner. The Asst. Sub Inspector investigated the case. PW1 identified MOs. 1 and 2. MO1 series are the bottles. PW3 is the Constable, who accompanied PW1. PW3 swears that he saw PW1 arresting the accused along with MOs. 1 and 2. PW3 also identified MOs 1 and 2. PW2 is an independent witness, who turned hostile to the prosecution. But he admitted his signature in Ext.P2 seizure mahazar. PW4 is the Head Constable, who also accompanied PW1. PW5 is the Asst. Sub Inspector, who investigated the case. As observed by the Appellate Court, there is sufficient evidence to prove that the accused was in possession of liquor, Crl.R.P.No. 3051 of 2003 4 which was proved by the oral testimony of PWs. 1, 3 and 4. The accused was arrested on the spot with MO1 series. Ext.P3 report shows that the accused was found in possession of IMFL. 7. The learned counsel for the revision petitioner, relying on the decision reported in Sabu v. State of Kerala (2007 (4) KLT 169), argued that the Assistant Sub Inspector of Police is not authorised to detect and investigate the offence under the Abkari Act. In the decision reported in Vikraman v. State of Kerala (2007 (1 KLT 1010), it was held that when detection was made by the detecting officer, the mere fact that the Asst. Sub Inspector conducted the later part of the investigation and laid the charge sheet, will not vitiate the trial. In the present case, PW1 is an authorised officer, who detected the crime and further investigation was conducted by the Asst. Sub Inspector. 8. A reading of Section 465 Cr.P.C. makes it clear that an irregularity or even illegality committed in the course of investigation does not vitiate the trial by an otherwise competent court unless miscarriage of justice has been caused thereby. In Crl.R.P.No. 3051 of 2003 5 the present case, the accused has no case that any miscarriage of justice was caused due to the investigation conducted by the Asst. Sub Inspector. 9. The learned counsel for the revision petitioner argued that the offence under Sections 55(h) and 55(i) of the Act are distinct and different offences and the offence under Section 55 (i) is not a lesser offence, for which an accused could not be convicted though charged for the offence under Section 55(h). A reading of Section 464 Cr.P.C. makes it clear that it is possible for the Appellate or Revisional court to convict an accused for an offence, for which no charge was framed unless the Court is of the opinion that failure of justice was occurred. 10. On perusing the records in this case, it is evident that the accused was aware of the basic ingredients of the offence, for which he is being convicted. On going through the judgment of the trial court and the appellate court, it is clear that the accused was found in possession of IMFL for sale. Once possession of IMFL is established, the accused, who claims that it was not a Crl.R.P.No. 3051 of 2003 6 conscious possession, has to establish it because how he came to be in possession is within his special knowledge. Section 64 of the Act stipulates that in prosecution until the contrary is proved, it shall be presumed that the accused has committed an offence in respect of the offence under Section 55 etc. The learned Magistrate has imposed only reasonable sentence, on considering the facts and circumstances of the case. Since the Appellate Court has not committed any error of fact or law in convicting the accused under Section 55(i) of the Act, I find no reason to interfere with that conviction and sentence. 11. Therefore, this Revision Petition is without any merit and it is dismissed. (M.L. JOSEPH FRANCIS) Judge tm