IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 666 of 2001()
1. KRISHNANKUTTY
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.666 OF 2001
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Dated 7th July, 2010
O R D E R
Petitioner was convicted and
sentenced for the offence under Section 55
(g) of Abkari Act by Judicial First Class
Magistrate-II, Thamarassery in
C.C.275/1997. Though petitioner challenged
the conviction and sentence before Sessions
court, Kozhikode in Crl.A.355/1998, learned
Additional Sessions Judge on re-
appreciation of evidence confirmed the
conviction and sentence and dismissed the
appeal. It is challenged in the revision.
2. Learned counsel appearing for
the petitioner and learned Public
Prosecutor were heard.
3. Learned counsel appearing for
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the petitioner submitted that though in the
light of evidence, conviction for the offence
under Section 55(g) of Abkari Act is to be
confirmed, petitioner is entitled to the
benefit of the benevolent provisions of
Probation of Offenders Act. It is submitted
that petitioner was being treated for mental
illness and in such circumstances, it is not in
the interest of justice to direct the
petitioner to undergo imprisonment. It was
pointed out that though when prosecution
witnesses were cross examined, though it was
not pointed out, when petitioner was
questioned under Section 313 of Code of
Criminal Procedure, it was stated by him that
he was undergoing treatment for mental illness
and learned Magistrate did not accept the said
defence as materials were not produced and
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before the appellate court, petitioner had
produced records to prove that he was being
treated for mental illness but learned Sessions
Judge did not accept them finding that it was
obtained only subsequent to the seizure of the
contraband article and not prior to or at the time
of seizure. Learned counsel submitted that in such
circumstances, a report was called for by this
court from District Probation Officer, Kozhikode
and the report discloses that petitioner was
undergoing treatment at Institute of Mental Health
and Neuro Sciences, Kozhikode and though illness is
under control, he does not understand the
consequence of his acts and in such circumstances,
petitioner is to be granted the benefit of
probation of Offenders Act.
4. Report submitted by District Probation
Officer, Kozhikode before this court, reveals that
petitioner was treated at Institute of Mental
Health and Neuro science, Kozhikode for
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Sehizopharnia and though illness is now under
control, he is not in a position to work and is not
even follow what others say. District Probation
Officer has also reported that his father is no
more. Mother is aged. Petitioner has a wife and
children. The wife is also suffering from illness.
It is reported that his mother, wife and children
are fond of him and they take care of him and it is
a fit case to grant the benefit of benevolent
provisions of Probation of offenders Act.
5. Abkari Act does not exclude
applicability of Probation of offenders Act.
This court in Ammini v. State of Kerala (1981
KLT SN Case No.50, Page 28) considered the
question of applying Probation of Offenders
Act to an accused of an offence under the
Abkari Act. Holding that Abkari Act does not
contain any provision prohibiting use of
Probation of Offenders Act to an offender,
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convicted under Section 55 of the Act, it was
cautioned that considering the fact that the
offence is not only involve revenue of the
State but also to the public health, it must
be in the mind of the court, when assessing
whether probation treatment could be given to a
particular offender.
6. The punishment provided for an
offence under section 55(g) of the Abkari Act,
prior to 3.6.1997, was imprisonment for a term
which may extend to two years and a fine of not
less than Rs.25,000/-. Considering the fact that
petitioner is a schizophrenia patient and the
report submitted by the District Probation Officer,
Kozhikode, it is not in the interest of justice to
send the petitioner to prison to undergo
imprisonment. Instead petitioner could be granted
the benefit as provided under section 4 of the
Probation of Offenders Act.
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Revision is allowed in part. Conviction
of the petitioner for the offence under section 55
(g) of the Abkari Act is confirmed. The sentence
is set aside. Petitioner is granted the benefit of
Probation of Offenders Act. Judicial First Class
Magistrate-II, Thamrasserry is directed to release
the petitioner on probation of good conduct on
executing a bond for Rs.5000/-, with two solvent
sureties, to appear and receive the sentence as and
when called upon, during a period of three years,
and to keep peace during that period. Petitioner
is directed to appear before Judicial First Class
Magistrate, Thamarasserry and execute the bond, on
12.8.2010. Send back the records.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.