IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 290 of 2001()
1. SUGUNAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.C.K.VIDYASAGAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :18/11/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.290 OF 2001
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Dated this the 18th day of November, 2009
ORDER
Revision petitioner is the accused in C.C.No.308/96 of Judicial
First Class Magistrate Court, Ramankary and appellant in Crl.Appeal
No.267/1997 of Sessions Court, Alappuzha. He was convicted under
Section 55(a) of Abkari Act and was sentenced to undergo rigorous
imprisonment for six months and to pay a fine of Rs. 1000/- in default,
to undergo simple imprisonment for three months by the trial court
which is confirmed in appeal. The accused has now come up in
revision challenging his conviction and sentence.
2. The case of the prosecution as shaped in evidence before
the trial court in brief is that on January 5, 1996 at about 7.30 pm, the
accused was found to be in possession of 5 litres of illicit arrack in
Aruparachira house situated in ward No.6 of Champakulam panchayat
and that thereby committed the offence punishable under Section 55(a)
of Abkari Act.
3. The accused on appearance before the trial court pleaded
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not guilty to a charge under Section 55(a) of Abakri Act. PWs 1 to 5
were examined and Exts.P1 to P7 and MOs 1 and 2 were marked on the
side of the prosecution. When questioned under Section 313 of
Cr.P.C., the accused denied the incident and submitted that he is an
employee of arrack contractor and because of the rivalry between the
contractor and the Excise Inspector he has been falsely implicated in
this case. No defence evidence was adduced.
4. The trial court on an appreciation of evidence found the
revision petitioner guilty of the offence punishable under Section 55(a)
of Abkari Act, convicted him thereunder and sentenced him as
aforesaid which is confirmed in appeal. The accused has now come up
in revision challenging his conviction and sentence.
5. Head the learned counsel for the revision petitioner and the
learned Public Prosecutor for the state.
6. The following points arise for consideration :
1) Whether the conviction of the revision
petitioner under Section 55(a) of Abkari Act
rendered by the trial court which is confirmed in
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appeal is sustainable ?
2) Whether the sentence imposed on the
revision petitioner is excessive or unduly harsh ?
Point No.1
7. PWs 1 to 5 were examined and Exts. P1 to P7 were marked
on the side of the prosecution to prove the guilt of the accused. PW4 is
the Head Constable attached to Pulincunn Police Station. PW5 is the
Sub Inspector therein. They testified in terms of the prosecution case
that on January 5 , 996 while they were on petrol duty on receiving
information, they went to the house of the accused and searched there
found MO1 jerry can with 5 litres of illicit arrack and two glasses.
Those were seized from there and taken to the police station. Ext.P4 is
the search memo. Ext.P6 FIR was prepared by PW5.
8. PW1 is the Excise Inspector of Kuttanad who prepared the
occurrence report Ext.P1 and laid the charge. PWs 2 and 3 the
independent witnesses turned hostile and did not support the
prosecution. The evidence of PWs 4 and 5 clearly prove the search and
seizure of contraband articles from the house of the accused. Ext.P3 is
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the certificate issued from Champakulam grama panchayat showing
that the accused is the owner of the said house. No serious
discrepancies or inconsistencies were brought out during their cross
examination to discredit their evidence. Both the courts below have
chosen to believe their evidence. I find no special reason to come to a
different conclusion. No evidence was adduced by the accused to
prove his case that he was falsely implicated in this case. Thus the
evidence of PWs 4 and 5 clearly shows that the accused was found in
possession of 5 litres of illicit arrack in his house in Ward No.6 of
Champakulam panchayat.
9. The next question is whether the charge under Section
55(a) will lie against the accused. The incident occurred on 5-1-1996.
During that period arrack was not banned. Section 55(a) of Abkari
Act comes into operation only when an individual was in possession of
illicit arrack knowing that the said arrack was illegally transported or
manufactured. There is no evidence to prove the above aspect in this
case. Mere possession of illicit arrack will come within the mischief of
Section 58 of Abkari Act. Therefore the conviction of the revision
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petitioner under Section 55(a) of Abkari Act has to be set aside and he
has to be convicted under Section 58 of Abkari Act.
Point No.2
10. As regards the sentence, the trial court imposed a sentence
of rigorous imprisonment for six months and to pay a fine of
Rs. 1,000/- in default, to undergo simple imprisonment for three
months under Section 55(a) of Abkari Act. Now I have converted the
conviction to Section 58 of Abkari Act. During the relevant period the
punishment prescribed under Section 58 of Abkari Act was fine which
shall not be less than Rs. 15,000/- and imprisonment for a term which
may extent to one year . The accused is now aged 70. Further the
incident occurred on 5-1-1996. Taking into consideration all these
aspects, I feel that a sentence of imprisonment till the rising of court
and a fine of Rs. 5000/- would meet the ends of justice.
In the result, revision petition is allowed in part. conviction of
the revision petitioner under Section 55 (a) is set aside. He is convicted
under Section 58 of Abkari Act. Sentence is modified to the effect that
he is sentenced to undergo imprisonment till the rising of court and to
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pay a fine of Rs. 5000/-, in default, to undergo simple imprisonment for
three months. The revision petitioner shall surrender before the trial
court on or before 15-12-2009 to receive the sentence. His bail bonds
are cancelled. Two month’s time is granted for payment of fine.
P.Q.BARKATH ALI
JUDGE
sv.
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