IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 850 of 2004(A) ------------------------------------------------- CRA.526/2001 of SESSIONS COURT, KOZHIKOE SC.18/2001 of I ADDL. ASST. SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER/PPELLANT/ACCUSED: GANGADHARAN, S/O. KELUKUTTY, AGED 44, VADAKKEPARAMBIL HOUSE, KIDAVOOR AMSOM, POONOOR DESOM, KOZHIKODE TALUK, KOZHIKODE. BY ADV. SRI.R.SUDHISH RESPONDENTS/RESPONDENTS/COMPLAINANTS: 1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, THAMARASSERY, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.850 of 2004 -------------------------- ORDER Petitioner, the accused in S.C.No.18/2001 on the file of I Additional Assistant Sessions Court, Kozhikode, filed this revision challenging the concurrent conviction and sentence for the offence under Section 55(a) of Abkari Act. Prosecution case was that PW2, the Preventive Officer, while on patrol duty on 22.2.1999 at about 5p.m., found the petitioner carrying MO1 can. Getting suspicious, MO1 can was verified and it was found containing liquor. PW1, the Excise Inspector, verified it and from the smell and taste, got satisfied that it is illicit arrack. Petitioner was arrested. Exhibit P2 mahazar was prepared. From the contents of MO1 can, sample was taken in a 180 ml. bottle. The bottle and MO1 can were sealed. On reaching the Excise Office, under Exhibit P4 crime and occurrence report, crime was registered. The seized MO1 can CRRP 850/04 2 and the sample were produced before the Magistrate. Under Exhibit P3 thondy list, it was received by the learned Magistrate. Under Exhibit P5 forwarding note, it was requested to forward the sample to the Laboratory. On examination of the sample forwarded, Exhibit P7 report was obtained. It shows that the sample contained 15.43% by volume of ethyl alcohol. Charge was laid before the learned Magistrate, which was committed to the Sessions Court. Learned Sessions Judge made over the case to I Additional Assistant Sessions Court for trial and disposal. Petitioner pleaded not guilty. 2. Prosecution examined six witnesses and marked seven exhibits and identified MO1. Though petitioner was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. 3. Additional Assistant Sessions Judge, on the evidence, found the petitioner guilty of the offence under Section 55(a) of Abkari Act. He was CRRP 850/04 3 convicted and sentenced to simple imprisonment for three years and fine of Rupees One lakh and in default, simple imprisonment for six more months. Petitioner challenged the conviction and sentence in Crl.A.No.526/2001. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Learned counsel appearing for the petitioner vehemently argued that courts below did not properly appreciate the evidence and in view of the contradictions, evidence of PWs 1 and 2 should not have been accepted by the courts below when PWs 3 and 4, the independent witnesses turned hostile. It was argued that on a proper appreciation of the evidence, it should have been found that MO1 can was not in the possession of the petitioner and the case was foisted and hence, conviction is not sustainable. CRRP 850/04 4 5. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction and the sentence. 6. Though learned counsel challenged the evidence of PWs 1 and 2, on going through the evidence, I find no material contradictions in their evidence. Argument of the learned counsel is that when PW1 was examined, he deposed that witnesses came along that way when the sample was prepared and evidence of PW2 is that witnesses came through that way when the mahazar was prepared and this contradiction was not properly appreciated. From the evidence of PWs 1 and 2, it cannot be said that there is any material contradiction as canvassed. Both, PWs 1 and 2, qualified, the witnesses to the seizure mahazar, as persons who came along that way. Neither PW1 nor PW2 deposed that the witnesses to the mahazar came at any particular time. Therefore, there is no CRRP 850/04 5 contradiction in the evidence. 7. Learned counsel also argued that PW1 did not furnish a report to the superior officer as provided under Section 38 of Abkari Act. Section 38 of Abakri Act provides that every officer other than an Abkari Officer shall be bound to give an information immediately to the Abkari Officer and every Abkari Officer shall immediately give information either to his immediate official superior or to an Abkari Inspector, of all breaches of any of the provisions of the Act, which may come to his knowledge and all such officers shall be bound to take all reasonable measures in their power to prevent commission of any such breaches which they may know or have reason to believe are about or likely to be committed. 8. Evidence of PW1, corroborated by PW2 and Exhibit P2 mahazar, show that seizure was effected, finding the petitioner carrying MO1 can and examining it on getting suspicious. Therefore, it CRRP 850/04 6 was not a case for giving information prior to the seizure. Though report was not furnished to the superior officer of PW1, Exhibit P4 crime and occurrence report along with Exhibit P2 mahazar and Exhibit P3 thondy list reached the court on the very next day. In such circumstances, failure to comply with the provisions of Section 38 of Abkari Act is not fatal. 9. Evidence of PWs 1 and 2, corroborated by Exhibit P2 mahazar, establish that petitioner was found carrying MO1 can and PW1 prepared the sample and sealed the sample as well as MO1 can and prepared Exhibit P2 mahazar and arrested the petitioner. Exhibit P5 forwarding note establishes that a request was made by the Investigating Officer to the court to forward the sample to the Laboratory. Exhibit P7 report will conclusively prove that MO1 can contained illicit arrack. Evidence of PWs 1 and 2, with Exhibits P1, P2 and P7, establish that petitioner was in possession of CRRP 850/04 7 illicit arrack on 22.2.1999 at about 5 p.m. 10. The question is what is the offence attracted. Though learned Additional Assistant Sessions Judge and learned Sessions Judge convicted the petitioner for the offence under Section 55(a) of Abkari Act, as held by a Division Bench of this Court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845), an offence under Section 55(a) of Abakri Act is not attracted, in the absence of a case for the prosecution that possession of illicit arrack was in the course of export or import. But, Section 58 of Abakri Act squarely applies to the facts of this case. It is proved that petitioner was possessing eight litres of arrack with the knowledge that it is illicit arrack. Therefore, though conviction for the offence under Section 55 (a) of Abkari Act is not attracted, it is proved that petitioner committed an offence under Section 58 of Abkari Act. Even though there was no specific CRRP 850/04 8 charge for an offence under Section 58 of Abkari Act, he could be convicted for the offence under Section 58 of Abkari Act. Hence, conviction of the petitioner is to be modified for the offence under Section 58 of Abkari Act. 11. Then the question is regarding the sentence. Sentence for the offence under Section 55 (a) and Section 58 of Abkari Act is the same. The incident was on 22.2.1999. Prosecution has no case that petitioner was involved in any other offence earlier. In such circumstances, interest of justice will be met if the substantive sentence is reduced to simple imprisonment for one year instead of three years granted by the courts below, in addition to the minimum fine awarded. Revision is allowed in part. Conviction of the petitioner for the offence under Section 55(a) of the Abkari Act and the sentence is set aside. Petitioner is found guilty of the offence under Section 58 of Abkari Act. He is convicted and CRRP 850/04 9 sentenced to simple imprisonment for one year and a fine of Rupees One lakh and in default, simple imprisonment for six months. Petitioner is entitled to the set off for the period, if any, he has been in custody during trial and also for any period subsequent to the conviction. Petitioner is directed to appear before I Additional Assistant Sessions Judge, Kozhikode on 03.09.2010. Additional Assistant Sessions Judge is directed to execute the sentence. 10th August, 2010 (M.Sasidharan Nambiar, Judge) tkv