IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 895 of 2002()
1. THOMAS S/O. KURIAKOSE, KOCHUNADAYIL
... Petitioner
2. SURENDRAN. S/O. DAMODARAN,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.IMTHIYAZ AHAMED
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/09/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 895 OF 2002 C
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Dated this the 26th day of September, 2007
O R D E R
The revision petitioners, who are accused Nos.1 and 2
in C.C.No.429/96 on the file of the JFCM-I, Kochi, stand
convicted under section 55(a) of the Abkari Act and sentenced to
rigorous imprisonment for one year and to pay a fine of
Rs.25,000/- and on default to pay the fine, to suffer rigorous
imprisonment for six months.
2. The case of the prosecution can be summarised as
follows:-
On 29.5.96 at about 4.50 p.m. accused Nos.1 to 3
transported 550 litres of toddy in 11 barrels in a tempo van bearing
registration No.KEK-8404 along Vypin-Munambam public road
from north to south. The offence was detected by PW5, Circle
Inspector of Police, Njarakkal Police Station. At the time of
detection, A1 was driving the tempo van and A2 styled himself as
the cleaner of the van. A3 was found travelling inside the tempo
van. The toddy was transported for the purpose of accused Nos.4
and 5 without any permit or valid authorisation. The accused have
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thereby committed an offence punishable under section 55(a) of
the Abkari Act. Out of the five accused persons, A1, A2, A4 and
A5 stood trial. A3 was absconding.
3. On the accused pleading not guilty to the charge
framed against them by the court below for the aforesaid offence,
the prosecution was permitted to adduce evidence in support of its
case. The prosecution altogether examined 5 witnesses as PWs
1 to 5 and got marked 8 documents as Exts.P1 to P8.
4. After the close of the prosecution evidence, the
accused were questioned under section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against them
in the evidence for the prosecution. They denied those
circumstances and maintained their innocence. The revision
petitioners contended that they were the driver and cleaner of a
stage carriage bus and they were requested by A3 to transport
toddy in his tempo van under a valid permit and they were obliging
A3 under the bona fide belief that the toddy in question was being
transported under a valid permit.
5. On the side of the defence, A5 got himself examined
as DW1.
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6. The learned Magistrate after trial, acquitted accused
Nos.4 and 5 but convicted revision petitioners(accused Nos.1 and
2) and sentenced them as aforesaid.
7. On appeal preferred by the revision petitioners as
Crl.Appeal No.437/99 before the V Additional Sessions Court,
Ernakulam, the said court dismissed the appeal confirming the
conviction entered and the sentence passed against the revision
petitioners. Hence this revision.
8. The learned counsel appearing for the revision
petitioners submitted that the revision petitioners are hailing from
poor circumstances and they were obliging A3 who requested
them to transport toddy under a valid permit in his tempo van and
accordingly A1 and A2(revision petitioners) were transporting the
same under the bona fide belief that the toddy in question was
being transported under a valid permit. In fact, the permit was
produced before the police, but they had suppressed the same
with a view to frustrate the defence available to the revision
petitioners.
9. Both the courts have considered the defence set up by
the revision petitioners. Except for the self serving statement
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made by the revision petitioners there was no material adduced to
show that the toddy in question was being transported under a
valid permit. It was after a careful evaluation of the oral and
documentary evidence that the courts below have recorded the
conviction against the revision petitioners. This court, sitting in the
rarefied revisional jurisdiction, will be loathe to re-appreciate the
evidence and come to a different conclusion even if it were
possible. The conviction was rightly entered against the revision
petitioners and is accordingly confirmed.
10. What now survives for consideration is the question
regarding the legality or otherwise of the sentence imposed on the
revision petitioners. Eventhough the revision petitioners could not
succeed in the defence set up by them, the abscondance of the 3rd
accused and the acquittal of accused Nos.4 and 5 indicates that
the petitioners might have fallen a prey to the vicious circle of
abkari contractors who were making profit by exploiting the poverty
of the revision petitioners. The offence was committed prior to the
amendment of section 55(a) of the Abkari Act. Considering the
entire facts and circumstances of the case, I do not think that the
revision petitioners deserve rigorous imprisonment for one year for
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the offence. Accordingly, the sentence imposed on them by the
courts below is modified. For the conviction under section 55(a) of
the Abkari Act, each of the revision petitioners(A1 and A2) is
sentenced to rigorous imprisonment for six months and to pay a
fine of Rs.25,000/-(Rupees twenty five thousand only) and on
default to pay the fine, they shall suffer rigorous imprisonment for
three months.
In the result, this revision petition is disposed of confirming
the conviction but modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks
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V. RAMKUMAR, J.
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Crl. R.P. No. 895 OF 2002 C
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O R D E R
26th day of September, 2007