IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2652 of 2003()
1. VIDHYASAGAR
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.JIJO PAUL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/07/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.2652 of 2003
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ORDER
Petitioner, the first accused in S.T.No.
2314/1997 on the file of Judicial First Class
Magistrate’s Court-I, Thrissur, filed this revision
challenging the concurrent conviction and sentence
for the offence under Section 58 of Abkari Act.
Prosecution case is that at about 2 a.m. on
24.8.1996, PW1, the Preventive Officer and PW4, the
Excise Inspector of Anti Narcotic Special Squad
found tempo van KL-8/8418, parked on the side of
the patrol bunk at Swaraj Round, Thrissur. Seeing
the Excise party, petitioner, who was inside the
vehicle, tried to open the door and escape and
doubting his conduct, they stopped him and examined
the van. It was found that underneath the 6700 eggs
stored in the van, 84 cases of Indian Made Foreign
Liquor containing 12 bottles of 750 ml. each and 54
cases containing 24 bottles of 375 ml. each. When
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one bottle each from the cases were opened, they
got satisfied that it is Indian Made Foreign
Liquor. Petitioner was arrested. The opened bottles
were sealed and along with the remaining bottles
seized, Exhibit P1 seizure mahazar was prepared.
The sealed bottles, were produced before the court
with a request to send for chemical analysis.
Exhibit P5 report was obtained. It shows that the
sample contained 38.90% by volume of ethyl alcohol.
After completing the investigation, charge was
laid, which was taken cognizance by the learned
Magistrate for the offence under Section 58 of
Abkari Act against the petitioner as the cleaner
and the second accused driver and third accused,
owner of the tempo van.
2. All the accused pleaded not guilty.
Prosecution examined six witnesses and marked
Exhibits P1 to P5. Accused did not adduce any
evidence.
3. Learned Magistrate, on the evidence, found
accused 2 and 3 not guilty of the offences, as
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there is no evidence to prove that they were in
possession of the contraband articles. Accepting
the evidence of PWs 1 and 4, though PWs 2 and 3,
the independent witnesses, turned hostile to the
prosecution, learned Magistrate convicted the
petitioner for the offence under Section 58 of
Abkari Act. He was sentenced to simple imprisonment
for three months and a fine of Rs.15,000/- and in
default, simple imprisonment for three months.
Petitioner challenged the conviction and sentence
before Sessions Court, Thrissur in Crl.A.No.
69/2002. 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
and learned Public Prosecutor were heard.
5. Learned counsel argued that evidence of PW1
establishes that no sample was taken at the time of
seizure and therefore, based on Exhibit P5 report,
courts below should not have convicted the
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petitioner. Learned counsel also argued that as per
Exhibit P5 report, the sample examined was only 700
ml. + 300 ml., which together make only one litre
and therefore, there is no evidence to prove that
the quantity of Indian Made Foreign Liquor was in
excess of the permissible limit and hence, the
conviction is not sustainable. Learned counsel
finally argued that the period of detention he had
already undergone is to be adjusted towards the
sentence, in case the conviction is to be
confirmed.
6. Though PW1, in cross-examination, to a
question put by the counsel appearing for the
petitioner, deposed that no sample was taken, as is
clear from his evidence, he was only answering that
no sample, out of the bottles was taken. Exhibit P1
mahazar with the evidence of PW1 corroborated by
the evidence of PW4, establish that when PWs 1 and
4 examined the van, they detected 54 cases of
Indian made Foreign Liquor, each case containing 24
bottles and each bottle having a capacity of 375
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ml. and 84 cases of Indian Made Foreign Liquor,
each case containing 12 bottles and each bottle
having a capacity of 750 ml., concealed beneath the
eggs being transported in the van. PWs 1 and 4
opened two bottles, namely, one bottle having a
capacity of 750 ml. and the other having a capacity
of 375 ml. and verified what it contained and got
satisfied that it was Indian Made Foreign Liquor.
All the bottles were seized. The opened two bottles
were separately sealed. Evidence of PW1, in cross-
examination, is only to the effect that apart from
sealing of the said two bottles, no separate sample
was taken. Those two bottles were produced in
court. The other bottles were confiscated as
provided under Section 67B of Abkari Act. Evidence
establish that the two bottles seized and sent for
all chemical analysis were the representative
samples of the bottles. Therefore, based on the
evidence of PW1, relied on by the learned
Magistrate, it cannot be said that no sample was
taken. So also, for the reason that the capacity of
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the two bottles, which were sent to the Laboratory,
is less than the permissible limit of Indian Made
Foreign Liquor, which could be in the possession of
a person, it cannot be said that an offence under
Section 58 of Abkari Act is attracted. Evidence is
that there were 24 bottles, each containing 375 ml.
in 54 cases and 12 bottles, each containing 750 ml.
in 84 cases. The quantity is huge and not within
the permissible limit. As rightly found by the
courts below, evidence establish that those bottles
of Indian Made Foreign Liquor are not lawfully
manufactured or transported. It is proved that
petitioner, who was found in the van, when the
Indian Made Foreign Liquor was being transported,
has been in possession of the same with the
knowledge that they are unlawfully manufactured or
transported. In such circumstances, conviction of
the petitioner for the offence under Section 58 of
Abkari Act is perfectly legal.
7. Then the question is regarding the sentence.
Learned Magistrate sentenced the petitioner only to
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simple imprisonment for three months and a fine of
Rs.15,000/-. The fine awarded by the learned
Magistrate is the minimum sentence provided as on
the date of commission of the offence. Even though
the sentence provided is imprisonment which may
extend to one year at that time, learned Magistrate
sentenced the petitioner only to simple
imprisonment for three months. In such circumstances,
the sentence is also reasonable.
There is no merit in the revision. Revision is
dismissed. It is made clear that petitioner is
entitled to get set off for the period he has been
in custody before charge was framed and subsequent
to the conviction, if any. Petitioner is directed
to appear before Judicial First Class Magistrate-I,
Thrissur on 03.09.2010. The Magistrate is directed
to execute the sentence.
28th July, 2010 (M.Sasidharan Nambiar, Judge)
tkv