IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 Crl.Rev.Pet.No. 2570 of 2004(A) ------------------------------- CRA.42/2001 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.1082/1997 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------------------------- VASU, S/O. MANNANCHERI CHANDU, KARANNUR AMSOM, DESOM, ELATHUR, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: --------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR, REJI JOSEPH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------------- Crl.R.P.No. 2570 OF 2004 ------------------------------------- Dated this the 8th day of November, 2011 O R D E R ~~~~~~~ Revision petitioner is the accused in C.C.1082/1997 on the file of Judicial Magistrate of First Class-IV, Kozhikode. He was found guilty by the learned Magistrate for offence under Section 55(a) of the Kerala Abkari Act. In appeal, the IInd Additional Sessions Judge, Kozhikode, to whom the appeal was made over, confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence, this Revision Petition is filed. 2. The allegation against the revision petitioner is that on 6.12.1996 at 6.p.m while PW5, the Assistant Excise Inspector along with PW1, the Probation Officer moving on patrol duty found the revision petitioner carrying a jerry can, which was marked as MO1, containing 2 ½ litres of illicit arrack. PW5 apprehended the revision petitioner and seized the contraband for which Ext.P1 recovery mahazar was prepared. Sample was taken and forwarded for chemical analysis. Ex.P3 occurrence Crl.R.P.No.2570/2004 2 report was prepared . PW4, the Excise Inspector, took over the investigation. By Ex.P2, the Chemical Examiner reported that the sample contained 28.4% Ethyl Alcohol by volume. After completing the investigation, charge sheet was submitted by PW4 before the Magistrate before whom the revision petitioner was sent for trial. PWs 1 and 5 gave supporting evidence. PWs 2 and 3, two occurrence witnesses turned hostile. The revision petitioner took a plea of total denial. No defence evidence was let in. The learned magistrate, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for two years and a fine of Rs.25,000/- with a default sentence under Section 55(a) of the Kerala Abkari Act. He was unsuccessful in the appeal. 3. The learned counsel appearing for the revision petitioner didn't dispute the finding of fact by the courts below regarding the arrest of the revision petitioner and seizure of the contraband. Relying upon the two decisions reported in Surendran v. Excise Inspector [2004(1)KLT 404] and Mohanan v. Crl.R.P.No.2570/2004 3 State of Kerala [2007(1)KLT 845, the learned counsel submitted that in an identical case two Division Benches of this Court arrived at a conclusion that offence under Section 55(a) is not sustainable in the given set of facts. According to the learned counsel, the possession of arrack was not banned at that time and that the revision petitioner can be prosecuted only for possessing arrack beyond the permissible quantity. Therefore, according to the learned counsel, he sought for modifying the conviction and sentence under Section 63 of the Abkari Act. 4. In Surendran's case there is no specific finding as to what was the offence committed. In Mohanan's case the Division Bench has observed that only an offence under Section 63 of the Abkari Act is established. Accordingly, the conviction and sentence was converted to Section 63 of the Abkari Act and the revision petitioner therein was sentenced to pay a fine of Rs.5000/-. Following the decision in Mohanan's case, the conviction and sentence impugned is set aside and instead, the revision petitioner is convicted for offence under Section 63 of the Abkari Act and sentenced to pay a fine of Rs.5000/-. In Crl.R.P.No.2570/2004 4 default of payment of fine, the revision petitioner shall undergo simple imprisonment for six months. The Criminal Revision Petition is allowed as above. (P.S.GOPINATHAN, JUDGE) ps/10/11