IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 276 of 2002()
1. K.C.KANARAN S/O.POKKAN,
... Petitioner
Vs
1. EXCISE INSPECTOR,VADAKARA EXCISE RANGE,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :25/03/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 276 of 2002
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Dated this the 25th day of March, 2009
O R D E R
The revision petitioner is the accused in C.C. No.
1314 of 1996 on the file of the Judicial First Class
Magistrate, Vadakara. The above case was filed by the
first respondent herein against the petitioner, alleging the
offence punishable under Section 58 of the Kerala Abkari
Act (for short ‘the Act’).
2. The prosecution case is as follows. PW4 is the
Preventive Officer attached to the Vadakara Excise Range
Office. According to him, on 13.9.1995, while he was
patrolling around Thiruvalloor amson and desom along
with other Excise officials, he reached the Panchayat road
situated on the east of the house belonged to one Niravil
Chathu. At that time the accused was seen coming
carrying a can in his hand. The accused was seen from a
distance of 10 feet. On seeing the excise officials, the
Crl.R.P.No. 276 of 2002
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accused stood perplexed and it is in the said circumstances the
Excise Officials stopped the accused and inspected the can found
with him. It contained 4 litres of illicit arrack. So the accused
was arrested and MO1 can was seized. 180 ml. was taken as
sample and it was sealed. Necessary label containing the
signature of the accused also was affixed on it. Ext.P1 is the
mahazar prepared by him.
3. To substantiate the case, PWs. 1 to 4 were examined
and Exts.P1 and P2 were marked on the side of the prosecution.
MO1 can was also marked on the side of the prosecution. On
going through the evidence and the documents, the trial court
found the accused guilty, convicted him under Section 58 of the
Act and sentenced him to undergo simple imprisonment for a
period of three months and also to pay a fine of Rs.15,000/- and
in default to undergo S.I. for a period of 3 moths.
4. Aggrieved by the conviction and sentence, the
petitioner filed Crl.A.No. 239 of 1999 before the Sessions Court,
Kozhikode. The Sessions Court confirmed the conviction and
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sentence and dismissed the appeal. Against that judgment, the
accused filed this Revision Petition.
5. Heard the learned counsel for the revision petitioner
and the learned Public Prosecutor.
6. It is well settled principle of law that normally the
jurisdiction of the High Court in revision has to be exercised
only in exceptional cases when there was glaring defect in the
procedure or there was manifest error on a point of law, which
has consequently resulted in flagrant violation of miscarriage of
justice. PW4 is the Preventive Officer attached to the Vadakara
Excise Range Office. According to him, on 13.9.1995, while he
was on patrol duty around Thiruvalloor amsom and desom
along with other Excise officials, he reached the Panchayat road
situated on the east of the house belonged to one Niravil Chathu.
At that time the accused was seen coming carrying a can in his
hand. He was seen from a distance of 10 feet. On seeing the
excise officials, the accused stood perplexed and it is in the said
circumstance that the excise officials stopped the accused and
Crl.R.P.No. 276 of 2002
4
inspected the can found with him. It contained 4 litres of illicit
arrack. So the accused was arrested and MO1 can was seized.
180 ml. was taken as sample and it was sealed. Necessary label
containing the signature of the accused also was affixed on it.
Ext.P1 is the mahazar prepared by him.
7. PWs. 1 and 2, who are independent witnesses to Ext.P1,
turned hostile, though they admitted their signature in Ext.P1.
PW3, Excise Inspector of Vadakara, swears that he registered the
occurrence report on the basis of records and MOs. produced by
PW4. PW3 produced the material objects before the Magistrate
Court with the requisition for sending the sample for chemical
analysis. Ext.P2 is the chemical analysis report, proved through
examination of PW3. As per Ext.P2, ethyl alcohol was detected
in the sample, which contained 24.16 percent by volume of ethyl
alcohol. There is no impediment in law to convict the accused
on the testimony of a single witness, if the court comes to the
conclusion that his evidence is honest and trustworthy. When
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the evidence of the Excise Officials inspires confidence, it is
open to the court to accept their uncorroborated testimony.
8. The learned counsel for the petitioner submitted that the
lower court ought to have found that to attract the offence under
Section 58 of the Act, the knowledge about possession of illicit
article is necessary and that the presumption under Section 64 of
the Act was not available to the prosecution at the time of
occurrence. That argument has no force, as when the possession
of illicit arrack is established, the accused, who claims that it was
not conscious possession, has to establish it, because how he
came to be in possession of it is within his knowledge. Since
the testimony of PW4 with regard to arrest and recovery of illicit
arrack is reliable, the trial court and the appellate court are
perfectly justified in convicting the accused under Section 58 of
the Act. The learned Magistrate has imposed only a reasonable
sentence. Considering the facts and circumstances of the case
and the gravity of the offence, there is no reason to interfere with
the sentence also. In view of the above aspects of the matter, the
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trial court and the appellate court have not committed any error
on facts or law in convicting and sentencing the accused. I find
no reason to interfere with their concurrent findings.
9. In the result, this Revision Petition is dismissed, as it is
without any merits. The Judicial Magistrate of First Class,
Vadakara is directed to execute the sentence.
(M.L. JOSEPH FRANCIS)
Judge
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