IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 658 of 2001()
1. BELANGAT KRISHNAN
... Petitioner
Vs
1. EXCISE INSPECTOR
... Respondent
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/09/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P. No. 658 OF 2001
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Dated this the 17th day of September, 2008
O R D E R
On the charge that on 18.10.95 at about 5.30 p.m. the revision
petitioner was found in possession of 3 litters of illicit arrack in a 5
litre capacity plastic can and utensils which could be used for illicit
manufacture of arrack and thereby committed offence punishable
under Section 58 of the Abkari Act, the revision petitioner faced trial
in the court of learned Judicial First Class Magistrate-I, Hosdurg in
STC No.1153/96. The revision petitioner was found guilty, convicted
and sentenced to undergo rigorous imprisonment for three years and
to pay fine of Rs.15,000/-. Revision petitioner preferred an appeal to
the Sessions Court, Kasargod. (Crl.A. No.58/97). When the appeal
was taken up for hearing, the counsel for the appellant remained
absent and there was no representation on his behalf. The appeal
was dismissed by the learned Sessions Judge confirming the
conviction and sentence. It is in challenge of the judgments of the
courts below that this revision petition is filed under Section 397
Cr.P.C.
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2. The only challenge in this revision petition as seen from the
grounds urged is that the learned Sessions Judge was not justified in
dismissing the appeal for default ignoring the various decisions of
this Court. I went through the judgment of the learned Sessions
Judge and find that it is not a case of the appeal being dismissed for
default. It is seen that though not in so many words, the learned
Sessions Judge has stated that on perusing the records and hearing
the Public Prosecutor, there was no reason to interfere with the
finding of the trial court which was based on the testimony of PW1
and Exts.P1 and P2. Therefore it is idle to contend that the appeal
was dismissed for default.
3. So far as the concurrent finding against the revision
petitioner is concerned PW1; the detecting officer has given evidence
that on the day and time and at the place of occurrence, the revision
petitioner was seen carrying the contraband in a 5 littre capacity
plastic can along with utensils which PW1 seized from the revision
petitioner as per Ext.P1, seizure mahazar. The seizure mahazar was
prepared in the presence of PWs 2 and 3, according to the
prosecution. They did not support the prosecution, but admitted their
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signature in Ext.P1. PW2 says that the revision petitioner is his
neighbour. PWs 2 and 3 may have justifiable reason not to support
the prosecution. But that did not mean that the evidence of PW1 has
to be ignored. Corroboration for evidence of PW1 comes from
Ext.P1.
4. It is seen from the records that though the incident was on
18.10.95, the material objects were produced in the trial court only on
14.03.96. Ext.P3, report of the chemical examination states that the
sample was sent to the laboratory from the court concerned vide
letter dated 14.03.96.
5. True, there is delay in producing the material objects in the
court. But, for the mere reason of delay even if it is assumed that it
was on account of any willful act or negligence on the part of PW1 or
PW4, the case of the prosecution cannot be thrown out. The court
has to consider whether the delay in production of the material
objects in court has caused any prejudice to the revision petitioner.
Going through the evidence of PWs 1 and 4, I find that there is no
challenge to the identity of the material objects. On the other hand,
PW1 has given evidence that at the time of seizure itself he had
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affixed labels containing signatures of PWs 2 & 3 as well on the
material objects. There was not even a suggestion that the labels
were not available on the material objects at the time of trial. Nor
was there any suggestion that the material objects were tampered
with while it was in the custody of PW4. Therefore delay in
production of the material objects in the case on hand is not fatal.
6. The finding of the court below that the accused was in
possession of illicit arrack along with utensils rests on the testimony
of PW1 which gets corroboration from Ext.P1 and to some extent at
least, from the evidence of PWs 2 &3. There is little reason to
interfere. No interference is required with the sentence awarded as
well.
The revision petition fails and it is dismissed.
THOMAS P. JOSEPH, JUDGE
ttb