IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 309 of 2008()
1. T. PRASANNAN, AGED 42 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.T.B.SHAJIMON
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/03/2008
O R D E R
V.RAMKUMAR,J.
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CRL.R.P.NO.309 OF 2008
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Dated this the 11th day of March 2008
JUDGMENT
The petitioner, who has been concurrently convicted and
sentenced for an offence punishable under Section 55(a) of the
Abkari Act for allegedly having been found in possession and
transporting 200 packets of Karnataka made arrack (each packet
containing 100 ml.) at 5.30 p.m. on 11.6.1995, challenges the
conviction entered and the sentence passed against him.
2. Even though the learned counsel appearing for the
revision petitioner assailed on various grounds the conviction
recorded against the petitioner, this court sitting in revision will
be loath to interfere with the conviction concurrently recorded by
the courts below after a careful evaluation of the oral and
documentary evidence. PW1, the Excise Inspector was the officer
who detected the offence. He was on patrol duty along with PW2
Excise Guard. After seizing the 200 packets of arrack, he took
three packets as sample and produced the sample packets as well
as the remaining packets in the white plastic carry bag which
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were marked as MOs. 1 to 3 before the trial court. The detection
and seizure was on 11.6.1997. 12.6.1997 and 13.6.1997 were
public holidays and on 16.6.1997, he produced the contraband
articles including the samples before the Magistrate. During the
course of investigation, Ext.P4 forwarding note was submitted
for sending the sample packets for chemical analysis. The said
request was complied with by the learned Magistrate. Ext.P5 is
the certificate of chemical analysis as per which the samples were
found to contain 32.02% by volume of Ethyl Alcohol.
3. Learned counsel appearing for the revision petitioner
made the following submissions in support of his attack.
There is unexplained delay of five days in producing the
seized properties before the court. PWs.3 and 4, who are the
independent witnesses to the seizure, turned hostile to the
prosecution. The specimen impression of seal was not sent to the
court by the detecting officer.
4. I am afraid that I cannot agree with the above
submissions. As 12.6.1997 and 13.6.1997 were second Saturday
and Sunday on which days the court was closed, the detecting
officer’s testimony is quite credible when he says that before
production on 16.6.1997, the properties were in his safe
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custody. Under these circumstances, the delay of 5 days cannot
be said to be fatal to the prosecution.
5. The law does not insist that the detecting officer should
send a specimen impression of the seal along with the properties
forwarded to the court. Hence failure on the part of PW1 in not
sending specimen impression of the seal cannot be fatal to the
prosecution.
6. PWs.3 and 4, the independent witnesses, no doubt,
turned hostile to the prosecution. This is not a new development.
Courts are familiar with such witnesses and in the face of the
credible testimony of PWs. 1 and 2, the disloyalty shown by
PWs.3 and 4 cannot be taken seriously.(see Kuttapan v State of
Kerala 1981 KLT S.N.9).
7. The evidence in the case would show that the petitioner
was found in possession of 200 packets of Karnataka made
arrack each packet containing 100 ml. With effect from
3.6.1997, no person is expected to manufacture, import, export,
transport, without permit, transit, possess, store, distribute,
bottle or sell arrack in any form in view of Section 8(1) of the
Abkari Act. After the amendment, arrack, if possessed by a
person is an offence whatever be its quantity. Under these
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circumstances, the conviction has been rightly entered against
the revision petitioner and the same is accordingly confirmed.
8. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed on
the revision petitioner. For the aforesaid conviction, he is
sentenced to rigorous imprisonment for one year and also to pay
a fine of Rs.1 lakh and on default to pay the fine, to suffer
rigorous imprisonment for six months. Learned counsel for the
petitioner would submit that the petitioner is a physically
handicapped person who deserves leniency in this case. Even if
the petitioner is a physically handicapped person that by itself
cannot constitute a circumstance to reduce the sentence. Having
regard to the nature of the offence and the deleterious effect
which it causes on the population, I do not find any good ground
to interfere with the sentence imposed on the revision petitioner.
In the result, this revision petition is dismissed confirming
the conviction and sentence as above.
V.RAMKUMAR, JUDGE
css/
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