IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1503 of 2001()
1. MALU
... Petitioner
Vs
1. EXCISE INSPECTOR, CHELANNUR RANGE
... Respondent
For Petitioner :SRI.N.M.JAMES
For Respondent : No Appearance
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/04/2010
O R D E R
M.L. JOSEPH FRANCIS J.,
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Crl. R.P. No. 1503 of 2001
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Dated this the 5th day of April , 2010
ORDER
This revision petitioner was the accused in C.C. No. 328 of
1996 on the file of the Judicial 1st Class Magistrate,
Kunnamangalam under Section 58 of the Abkari Act and was also
the appellant in Crl. Appeal. No. 22/1999 on the file of the District
and Sessions Judge, Kozhikode.
2. This revision petitioner was charge- sheeted under
Section 58 of the Abkari Act by the 1st respondent.
3. The prosecution case is that on 3.7.1995 at about 3.30
p.m., the revision petitioner was found transporting about 2 =
litres of illicit arrack in a plastic cannas of 5 litres capacity through
the Panchayath Road from Chalil Thazham to Oottukulam at
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Padinjattummuri in Kakkodi Village, Kozhikode Taluk.
4. The revision petitioner faced trial before the Judicial 1st
class Magistrate Court, Kunnmangalam in C.C. No. 328 of 1996
and the Prosecution had examined PWs 1 to 6 and marked
Exhibits P1 to P6 and MO1. The revision petitioner was
questioned under Section 313 of the Code of Criminal Procedure.
5. After closing evidence, the Magistrate Court heard both
sides, and the revision petitioner was convicted and sentenced to
undergo simple imprisonment for two months and to pay a fine of
Rs.3,000/- (Rupees three thousand only) in default to undergo
simple imprisonment for one month under Section 58 of the
Abkari Act.
6. Against the conviction and sentence imposed by the trial
court, the revision petitioner preferred an appeal before the
District and Sessions Judge, Kozhikode in Crl. Appeal No. 22/99.
The Appellate Court confirmed the conviction and sentence
imposed by the Trial Court.
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7. Aggrieved by that judgment, the accused filed this C.R.P.
8. Heard the learned counsel for the revision petitioner and
the learned Public Prosecutor.
9. The learned counsel for the revision petitioner submitted
that the courts below ought to have held that the prosecution
suppressed the material facts from the court for the reason that the
then C.I. with whom the M.Os and records were produced was not
even cited as a witness. The learned counsel for the revision
petitioner further submitted that PW1 deposed that M.Os and
records were produced before one N.S. Chandra Sekharan Nair,
the then C.I., PW6 had deposed that he does not know whether
the M.Os and records were produced before C.I. Chandra
Sekharan Nair. Learned counsel for the Revision petitioner
submitted that Lower Court ought to have held that Ext.P3 and P4,
the occurrence reports ought to have been dated and omissions to
put dates on Ext.P3 and P4 are crucial and this aspect ought to
have been considered in favour of the petitioner.
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10. PW1 was the Preventive Officer attached to Kozhikode
Excise Enforcement and Anti Narcotic Special Squad. PW2 was
then Excise Guard attached to the Special Squad. PW1 and PW2
deposed that on 3.7.1995 at about 3.30 pm while they were
conducting patrol duty from the Panchayath Road from Chalil
Thazham to Oottukulam and when they reached near the house of
one Rajan, they saw the accused coming with a black plastic
canass in her hand and on seeing the Excise party she became
perplexed and tried to go back. Then she was prevented by the
Excise party and the contents in the cannas were examined by
tasting and smelling in the presence of two witnesses and it was
found to be illicit arrack. Then the accused was questioned and
she told that she carried it for sale. She was arrested on the spot
and was taken into custody. Out of the illicit arrack, sample was
taken in a 180 ml bottle and labels containing signature of the
accused were affixed on the sample bottle and the MO1 cannas
containing remaining arrack was seized. PW1 and PW2 would
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swear that there was about 2 = litres of illicit arrack in that M.O1
cannas having 5 litre capacity.
11. Ext.P1 is the mahasar prepared and the accused was
released on bail and the thondi articles and records were produced
before the C.I. of Excise, Kozhikode. PW1 and PW2 identified
MO1 cannas seized from the accused who was present in the
court. PW4 and PW5 are independent witnesses examined to
prove Ext.P1 mahazar. Even though they turned hostile they
admitted their signature in Ext.P1. The offence was dated as
3.7.1995 at 3.30 pm and Ext.P5 forwarding note by which the
sample of illicit arrack seized from the possession of the accused
was sent to the Magistrate Court for getting the same analysed by
chemical examiner is dated 5.7.1995. So as observed by the courts
below it cannot be said that there was much delay in producing the
same before the Magistrate court.
12. Ext.P2 report of the Chemical examiner would show
that seals of the sample bottle was in tact and tallied with the
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specimen impression of the seal contained in the forwarding note.
Ext.P2 report of the Chemical examiner would show that the
sample contained 57.74 % by volume of ethyl alcohol. PW3 the
then Excise Inspector would say that the strength of the arrack
distributed by the Government during that the period was 42.86%
by volume of ethyl alcohol. The accused has no case that she
possessed the illicit arrack without knowing of nature of the
liquor. Eventhough independent witnesses who signed seizure
mahazar are resiled from their former version it would not mean
that the prosecution case regarding the occurrence is not correct.
Identify of the accused cannot be doubted as she was arrested on
the sport. Even though C.I. before whom the seized articles were
produced is not examined; Ext.P3 report is proved by the
examination of PW6. Ext.P1, P3, P4 and P5 are seen proved
before the Magistrate court on 5.7.1995 itself and therefore the
omission to put date on Ext.P3 and ExtP4 is not fatal to the
prosecution case. Nothing is brought out to discredit the
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testimony of official witnesses.
13. Both the courts below properly considered and
appreciated the evidence on record and found that the accused has
committed an offence punishable under Section 58 of the Abkari
Act by possessing illicit arrack and the the accused was convicted.
Since the above conviction has been recorded on a careful
evaluation of both the oral and documentary evidence, I do not
find any error, illegality or impropriety in the conviction so
recorded concurrently by courts below and the same is hereby
confirmed.
14. Learned counsel for the revision petitioner submitted
that the revision petitioner/ accused is an aged poor widow and she
is the only earning member. Considering this aspect and the facts
and circumstances of the case, I am of the view that interest of
justice would be served by reducing the sentence to undergo
simple imprisonment for two months to imprisonment for one
month and by maintaining the fine of Rs.3,000/-.
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Accordingly this C.R.P. is allowed in part. The conviction
of the accused in C.C. No. 328 of 1996 on the file JFCM
Kunnamangalam under Section 58 of the Abkari Act is confirmed.
The sentence is modified and that the accused is sentenced to
undergo simple imprisonment for one month and to pay a fine of
Rs.3,000/- in default to undergo simple imprisonment for another
one month under Section 58 of the Abkari Act. JFCM,
Kunnamangalam is directed to implement the modified sentence.
M. L. JOSEPH FRANCIS, JUDGE
dl/