IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 1424 of 2003() ------------------------------ CRA.62/1998 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.328/1996 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KOOLAM PARAMBATH (KARAKKAL) JANAKI W/O.AMBADI, THOTTUMPURAM DESOM, NILESHWAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): RESPONDENT/RESPONDENT ------------------------------------ STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1424 OF 2003 --------------------------------------------- Dated 26th July, 2010 O R D E R Petitioner, the accused in C.C.328/1996 on the file of Judicial First Class Magistrate-II, Hosdurg was convicted and sentenced to rigorous imprisonment for three months and a fine of Rs.15,000/- for the offence under Section 58 of Abkari Act. Prosecution case is that on 17/3/1996 at about 1.30 p.m petitioner was found moving, carrying MO.1 can containing illicit arrack in violation of the rules under Abkari Act and she thereby committed an offence under Section 58 of Abkari Act. Petitioner was arrested and released on bail on the same day. MO.1 was seized and sample was prepared and both sample and CRRP 1424/03 2 MO.1 were sealed. Ext.P1 mahazar was prepared at the scene. On returning to the Excise office, Ext.P2 crime and occurrence report was registered for the offence under Section 58 of Abkari Act. After completing investigation, final report was submitted which was taken cognizance by the learned Magistrate. Petitioner pleaded not guilty. Prosecution examined PW1 the Preventive Officer who seized illicit arrack and PW2 Excise Inspector who lodged final report. Exts.P1 to P3 were marked and MO.1 was identified. Petitioner did not adduce any evidence. 2. Learned Magistrate on the evidence of PW1 found that petitioner was possessing MO.1 can containing illicit arrack and Ext.P3 report of chemical analysis establish that it is illicit arrack. She was therefore, convicted and sentenced for the offence under Section 58 CRRP 1424/03 3 of Abkari Act. Though petitioner challenged the conviction and sentence before Sessions court, Kasargod in Crl.A.62/1998, learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 3. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 4. Argument of the learned counsel appearing for the petitioner is that as per the prosecution case, illicit liquor was seized on 17/3/1996, but as is clear from the property list, it reached the court only on 7/5/1996 and the delay is fatal when the delay was not explained. It is argued that learned Magistrate and learned Sessions Judge should not have convicted the petitioner based on Ext.P3 report CRRP 1424/03 4 of chemical analysis on examination of the sample produced belatedly in court. Learned counsel also argued that sample was not taken properly and signature on the seal of the petitioner was not taken, so as to assure the identity of the sample and in such circumstances, the conviction is illegal. It is also pointed out that except PW1 no eye witness was examined. 5. Learned Public Prosecutor submitted that evidence of PW1 with Ext.P1 mahazar establish that petitioner was in possession of MO.1 can and it was seized by PW1 and sample was prepared in her presence which on examination at the laboratory was found to be illicit arrack and in such circumstances, the conviction is perfectly legal. It was pointed out that PW1 was not asked about delay in producing Mo.1 or whether it was in safe CRRP 1424/03 5 custody till it was produced in court and in such circumstances, even if there is delay it will not cause any prejudice to the petitioner and hence conviction is perfectly legal. 6. Evidence of PW1 corroborated by Ext.P1 seizure mahazar, was accepted by the learned Magistrate and learned Additional Sessions Judge. Though learned counsel argued that when no independent witness was examined and the solitary evidence of PW1 the detecting officer should not have been accepted records of the court below show that the independent witness to Ext.P1 mahazar was summoned as CW3. But he could not examine in spite of issuance of non bailable warrant, as he died. Therefore, failure to examine the independent witness is not due to any fault of the prosecution. 7. Question is whether evidence of PW1 is trustworthy and reliable. There is no rule CRRP 1424/03 6 or law that evidence of an excise Official cannot be relied on unless corroborated by an independent witness. If his evidence is trustworthy and credible, no other corroboration is warranted. Question is whether evidence of PW1 is reliable and trustworthy. Learned Magistrate who had occasion to note the demure of the witness accepted the evidence of PW3. On going through the evidence nothing was brought out, to disbelieve the evidence of PW3. When his version is corroborated by Ext.P1 the contemporaneous mahazar prepared at the time of seizure, I find no reason to differ. Evidence of PW1 with Ext.P1 establishes that petitioner was in possession of Mo.1 can containing illicit liquor and sample was prepared by PW1 and it was sealed in the presence of the petitioner and Ext.P1 seizure mahazar was prepared. CRRP 1424/03 7 8. Though final report with property list show that sample and MO.1 reached the court only on 7/5/1996, question is whether delay caused any prejudice to the petitioner. Mere delay by itself is not fatal. Question is whether sample and MO.1 were in safe custody before their production in court. PW.1 or PW.2 was not asked anything about the delay in production of MO.1 or the sample in court. When the sample was sealed and seal was found intact at the laboratory and nothing was pointed out as to the improper custody of MO.1 and the sample before there production, I cannot agree with the submission of the petitioner that delay is fatal. In such circumstances, I find no reason to interfere with the conviction for the offence under Section 58 of Abkari Act. 9. Then the only question is regarding CRRP 1424/03 8 the sentence. Offence was committed on 17/3/1996. Sentence provided for the offence under Section 58 of Abkari Act, on that day was fine, not less than rupees Fifteen Thousand and imprisonment for a term which may extend to one year. Learned Magistrate awarded a substantive sentence of three months in addition to the mandatory minimum sentence. In such circumstances, I find no reason to interfere with the sentence. Revision fails and is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate-II, Hosdurg on 2/9/2010. Judicial First Class Magistrate-II, Hosdurg is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.