IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 438 of 2002() ----------------------------- CRA.4/1995 of SESSIONS COURT, MANJERI CC.435/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... REVN. PETITIONER(S): APPELLANT / ACCUSED ---------------------------------------- KUPPAN S/O.MAYANDI,PARAPPUR,TIRUR MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,COCHIN-31 2. THE EXCISE INSPECXTOR,EXCISE RANGE, PARAPPANANGADI,MALAPPURAM DISTRICT. BY P.P. SRI. RAVINDRA BABU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 438 of 2002 ------------------------------------------------- Dated this the 16th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.55(g) of the Kerala Abkari Act. The petitioner faces a sentence of rigorous imprisonment for a period of 6 months and to pay a fine of Rs.1,000/-. Default sentence has also been imposed. 2. The crux of the allegations against the petitioner is that he was found to transport 10 litres of wash in a container on 17/10/92 when an Excise party led by P.W.2 intercepted him, arrested him and effected the seizure. 3. The accused denied the offence alleged against him and thereupon the prosecution examined P.Ws.1 and 2 and proved Exts.P1 to P4. M.Os.1 and 2 were marked. P.W.1 is an Crl.R.P. No. 438 of 2002 -: 2 :- independent witness who had allegedly witnessed the seizure. He is an attestor to Ext.P1 seizure mahazar. He admitted his signature in Ext.P1; but did not subscribe to the contents of Ext.P1. According to him, he had not witnessed any seizure; but his signature in Ext.P1 was obtained by the Excise officials. P.W.2 is the detecting officer. He spoke about the details of the detection and the seizure of the contraband article from the possession of the petitioner herein. Ext.P1 is the seizure Mahazar; Ext.P2 is the occurrence report; Ext.P3 is the request to the Chemical Examiner and Ext.P4 is the Chemical Examiner's report. M.O.1 is the container in which the contraband article was being transported by the petitioner. M.O.2 is the sample bottle. 4. The accused took up a defence of total denial. No defence evidence was adduced. 5. The courts below concurrently came to the conclusion that it was safe to place reliance on the oral evidence of P.W.2. The courts below found that the oral evidence of P.W.2 is eminently supported by the contents of the contemporaneous Ext.P1 seizure mahazar, the signature in which is admitted by P.W.1 though he turned hostile to the prosecution. Accordingly, the courts below proceeded to pass the impugned concurrent Crl.R.P. No. 438 of 2002 -: 3 :- judgments. 6. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner raises two grounds. First of all, it is contended that the oral evidence of P.W.2 must have been discarded by the courts below. Secondly it is contended that the sentence imposed is excessive. 7. I find no merit in these contentions. The oral evidence of P.W.2 is eminently supported by the contents of Ext.P1 seizure mahazar. Notwithstanding the hostility of P.W.1, he has admitted his signature in Ext.P1 seizure mahazar. The mere fact that P.W.2 is an Excise official is no reason for this Court at this third tier of litigation to throw over board his oral evidence. I have been taken through the cross-examination of P.W.2. There is no semblance of even a suggestion that P.W.2 has any animosity, illwill or reason to depose against the petitioner falsely. 8. I am, in these circumstances, satisfied that the courts below committed no error in accepting and acting upon the oral evidence of P.W.2. His oral evidence when believed clearly establishes the offence under Sec.55(g) of the Abkari Act against the petitioner. Crl.R.P. No. 438 of 2002 -: 4 :- 9. Coming to the question of sentence, I note that only the statutory minimum sentence is imposed on the revision petitioner. There is no scope for interference with the sentence imposed also. 10. It follows from the above discussions that this revision petition must fail. The same is dismissed. The petitioner shall have time till 2/5/09 to appear before the learned Magistrate for execution of the impugned sentence. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No. 438 of 2002 -: 5 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 438 of 2002 ------------------------------------------------- Dated this the 16th day of March, 2009 ORDER