IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 438 of 2002()
1. KUPPAN S/O.MAYANDI,PARAPPUR,TIRUR
... Petitioner
Vs
1. THE STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE EXCISE INSPECXTOR,EXCISE RANGE,
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :16/03/2009
O R D E R
R. BASANT, J.
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Crl.R.P. No. 438 of 2002
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Dated this the 16th day of March, 2009
ORDER
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution
under Sec.55(g) of the Kerala Abkari Act. The petitioner faces
a sentence of rigorous imprisonment for a period of 6 months
and to pay a fine of Rs.1,000/-. Default sentence has also been
imposed.
2. The crux of the allegations against the petitioner is
that he was found to transport 10 litres of wash in a container
on 17/10/92 when an Excise party led by P.W.2 intercepted
him, arrested him and effected the seizure.
3. The accused denied the offence alleged against him
and thereupon the prosecution examined P.Ws.1 and 2 and
proved Exts.P1 to P4. M.Os.1 and 2 were marked. P.W.1 is an
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independent witness who had allegedly witnessed the seizure.
He is an attestor to Ext.P1 seizure mahazar. He admitted his
signature in Ext.P1; but did not subscribe to the contents of
Ext.P1. According to him, he had not witnessed any seizure; but
his signature in Ext.P1 was obtained by the Excise officials.
P.W.2 is the detecting officer. He spoke about the details of the
detection and the seizure of the contraband article from the
possession of the petitioner herein. Ext.P1 is the seizure
Mahazar; Ext.P2 is the occurrence report; Ext.P3 is the request
to the Chemical Examiner and Ext.P4 is the Chemical Examiner’s
report. M.O.1 is the container in which the contraband article
was being transported by the petitioner. M.O.2 is the sample
bottle.
4. The accused took up a defence of total denial. No
defence evidence was adduced.
5. The courts below concurrently came to the conclusion
that it was safe to place reliance on the oral evidence of P.W.2.
The courts below found that the oral evidence of P.W.2 is
eminently supported by the contents of the contemporaneous
Ext.P1 seizure mahazar, the signature in which is admitted by
P.W.1 though he turned hostile to the prosecution. Accordingly,
the courts below proceeded to pass the impugned concurrent
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judgments.
6. Called upon to explain the nature of the challenge which
the petitioner wants to mount against the impugned concurrent
judgments, the learned counsel for the petitioner raises two
grounds. First of all, it is contended that the oral evidence of
P.W.2 must have been discarded by the courts below. Secondly
it is contended that the sentence imposed is excessive.
7. I find no merit in these contentions. The oral evidence
of P.W.2 is eminently supported by the contents of Ext.P1 seizure
mahazar. Notwithstanding the hostility of P.W.1, he has
admitted his signature in Ext.P1 seizure mahazar. The mere
fact that P.W.2 is an Excise official is no reason for this Court at
this third tier of litigation to throw over board his oral evidence.
I have been taken through the cross-examination of P.W.2.
There is no semblance of even a suggestion that P.W.2 has any
animosity, illwill or reason to depose against the petitioner
falsely.
8. I am, in these circumstances, satisfied that the courts
below committed no error in accepting and acting upon the oral
evidence of P.W.2. His oral evidence when believed clearly
establishes the offence under Sec.55(g) of the Abkari Act against
the petitioner.
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9. Coming to the question of sentence, I note that only the
statutory minimum sentence is imposed on the revision
petitioner. There is no scope for interference with the sentence
imposed also.
10. It follows from the above discussions that this revision
petition must fail. The same is dismissed. The petitioner shall
have time till 2/5/09 to appear before the learned Magistrate for
execution of the impugned sentence.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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R. BASANT, J.
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Crl.R.P. No. 438 of 2002
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Dated this the 16th day of March, 2009
ORDER