High Court Kerala High Court

Sura @ Surendran vs State Of Kerala on 3 August, 2009

Kerala High Court
Sura @ Surendran vs State Of Kerala on 3 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3161 of 2008()


1. SURA @ SURENDRAN, S/O.SEKHARAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :03/08/2009

 O R D E R
                         THOMAS P.JOSEPH, J.
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                          CRL. R.P. NO.3161 of 2008
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                 Dated this the 3rd day of August,     2009

                                 O R D E R

————–

Heard counsel for petitioner and Public Prosecutor. This revision

is in challenge of judgment of learned Additional Sessions Judge

(Adhoc) Fast Track, Thrissur in Crl. Appeal No.456 of 2006 confirming

conviction and sentence of petitioner in S.C. No.108 of 2006 of the

court of Additional Assistant Sessions Judge, Thrissur for offence

punishable under Section 8(1) and (2) of the Abkari Act. It is

contended in this revision that conviction and sentence are not legal

and proper.

2. According to prosecution, petitioner was found possessing

about 3 litres of illicit arrack in a jerkin on 22.11.2002. P.W.1,

Preventive Officer is said to have detected the offence. P.W2, Excise

guard accompanied P.W.1 for patrol duty. P.Ws.1 and 2 have given

evidence that on the relevant day and place while on patrol duty they

found petitioner with the contraband in a jerkin proved as M.O.1.

P.W.1 collected 200 ml. of arrack as sample and the same and rest

were properly packed, labeled, sealed and seized as per Ext.P5,

mahazar. Exhibit P2 is the label affixed on M.O.1. Petitioner was

CRL.R.P. No.3161 of 2008
-: 2 :-

arrested at the spot. Exhibit P1 is the arrest memo. Exhibit P3 is

produced to show that notice of arrest of petitioner was given to his

close relative. Exhibit P4 is the report for search of body of petitioner.

It is the further case of P.Ws.1 and 2 that on the same day petitioner

along with records and M.O.1 were produced before Excise Inspector.

P.W.3 is an independent witness for alleged detection of the offence.

He admitted signing Exts.P1 to P5 but he claimed that he had not

witnessed the seizure. He further admitted that excise officials had

been to the place of occurrence. Evidence of P.W.3 shows that

petitioner is closely known to him. P.W.5 is the Village Officer who

prepared Ext.P11, sketch of scene of occurrence. P.W.1 produced

material object and petitioner along with case records before P.W.4,

Excise Inspector on 29.11.2002. He caused production of the records,

material objects and accused before court on 30.11.2002. Exhibit P6

is the crime and occurrence report and Ext.P7, property list prepared

by him. Exhibit P9 is the office copy of forwarding note for sending

the sample for chemical examination. Exhibit P10 is the chemical

examination report dated 28.2.2004 which certified that the sample

contained 30.30% by volume of Ethyl Alcohol. From the above

evidence courts below found in favour of the prosecution.

3. It is true that P.W.3 did not support the prosecution but

even the evidence of P.W.3 would show that on the relevant day and

time excise officials had been to the place of occurrence where

CRL.R.P. No.3161 of 2008
-: 3 :-

Exts.P1 to P5 were prepared. P.W.3 also admits attesting Exts.P1 to

P5. That P.W.3, a close acquiantant of petitioner did not support

prosecution is no reason to disbelieve the evidence of P.Ws.1 and 2.

On going through the judgments under challenge and having heard

learned counsel I find no reason to discard the evidence of P.Ws.1 and

2. Exhibits P1 to P5 support their version. As such no interference is

required with the finding of the courts below that petitioner carried

illicit arrack on the relevant day, time and place. Conviction of

petitioner does not require interference.

4. Courts below sentenced petitioner to undergo rigorous

imprisonment for two years and payment of fine of Rs.1,00,000/- and

in default of payment of fine to undergo simple imprisonment for

three months. It is submitted by learned counsel that petitioner has

already undergone imprisonment for more than eighty days. Learned

Public Prosecutor submitted that petitioner was apprehended on

29.11.2002 and released on bail on 31.3.2003 and in the course of trial

was taken to custody on 14.3.2006 since he violated bail conditions

and was released on 10.4.2006. Petitioner is a Coolie by occupation.

It is not shown that he is involved in any other case. In these

circumstances I am satisfied that the period of imprisonment already

undergone by the petitioner is sufficient sentence so far as the

substantive sentence is concerned. There is no reason to interfere

with the sentence of fine. Default sentence is however modified as

CRL.R.P. No.3161 of 2008
-: 4 :-

simple imprisonment for one month.

Resultantly this revision is allowed in part to the following extent:

(i) Substantive sentence awarded to

the petitioner is modified and confined to the

period of imprisonment already undergone by

him during the crime and trial stage.

                   (ii)  Sentence for non-payment of      fine

            is modified as     simple imprisonment for one

            month.


                   (iii) Petitioner is granted one months'

            time from this day to deposit the fine in the

            trial court.



Petitioner shall appear in the trial court on 7.9.2009 to receive

the sentence. Until then warrant if any against petitioner will be kept in

abeyance.

THOMAS P.JOSEPH, JUDGE.

vsv