IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3051 of 2003()
1. SUBASH, S/O.PUTHANPURAKKAL BHASKARAN,
... Petitioner
Vs
1. STATE OF KERALA REP. BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :26/03/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 3051 of 2003
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Dated this the 26th day of March, 2009
O R D E R
The revision petitioner is the accused in C.C.No. 153
of 1999 of the Court of the Judicial Magistrate of the First
Class, Wadakkancherry. The accused stands charge
sheeted by the Sub Inspector of Police, Cheruthuruthy
Police Station, alleging the offence punishable under
section 55(h) of the Kerala Abkari Act (for short ‘the Act’).
2. The allegation against the accused is that on
22.4.1997, at 5.45 p.m., at a place called Mooppan
Theruvu in Painkulam Village, the accused was found
selling Indian made Foreign Liquor. The offence was
detected by CW1.
3. In the trial court, on the prosecution side PWs. 1
to 5 were examined, Exts.P1 to P5 and MOs. 1 and 2 were
marked. On considering the evidence, the trial court
convicted and sentenced the petitioner to S.I. for a period
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of six months and to pay a fine of Rs.25,000/- and in default to
undergo S.I. for 6 months for the offence under Section 55(h)
of the Act. In appeal, Crl.A.No. 543 of 2000, the learned Addl.
Sessions Judge (Adhoc) Fast Track Court Mo.1, Thrissur
modified the conviction to one under Section 55(i) of the Act
and confirmed the sentence. Against that judgment the accused
filed this Revision Petition.
4. Heard the learned counsel for the revision petitioner
and the learned Public Prosecutor.
5. 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
miscarriage of justice.
6. PW1 is the Sub Inspector of Police, Cheruthuruthy,
who detected the offence. He swears that on 22.4.1997 while he
was on patrol duty along with one Head Constable and two
Police constables, when they reached Painkulam, he received
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reliable information about the sale of liquor by the accused.
PW1 and his police party reached near the house of one
Bhaskaran. The accused was found there pouring liquor from a
bottle into a glass to another person standing near him. On
seeing the police, the other person ran away. PW1 arrested the
accused and he was having three bottles of 750 ml. capacity of
XXX Rum and two bottles of Mcdowel Rum. Ext.P5 is the
F.I.R. and Ext.P6 is the report of the chemical examiner. The
Asst. Sub Inspector investigated the case. PW1 identified MOs.
1 and 2. MO1 series are the bottles. PW3 is the Constable, who
accompanied PW1. PW3 swears that he saw PW1 arresting the
accused along with MOs. 1 and 2. PW3 also identified MOs 1
and 2. PW2 is an independent witness, who turned hostile to the
prosecution. But he admitted his signature in Ext.P2 seizure
mahazar. PW4 is the Head Constable, who also accompanied
PW1. PW5 is the Asst. Sub Inspector, who investigated the
case. As observed by the Appellate Court, there is sufficient
evidence to prove that the accused was in possession of liquor,
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which was proved by the oral testimony of PWs. 1, 3 and 4.
The accused was arrested on the spot with MO1 series. Ext.P3
report shows that the accused was found in possession of IMFL.
7. The learned counsel for the revision petitioner, relying
on the decision reported in Sabu v. State of Kerala (2007 (4)
KLT 169), argued that the Assistant Sub Inspector of Police is
not authorised to detect and investigate the offence under the
Abkari Act. In the decision reported in Vikraman v. State of
Kerala (2007 (1 KLT 1010), it was held that when detection was
made by the detecting officer, the mere fact that the Asst. Sub
Inspector conducted the later part of the investigation and laid
the charge sheet, will not vitiate the trial. In the present case,
PW1 is an authorised officer, who detected the crime and further
investigation was conducted by the Asst. Sub Inspector.
8. A reading of Section 465 Cr.P.C. makes it clear that an
irregularity or even illegality committed in the course of
investigation does not vitiate the trial by an otherwise competent
court unless miscarriage of justice has been caused thereby. In
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the present case, the accused has no case that any miscarriage of
justice was caused due to the investigation conducted by the
Asst. Sub Inspector.
9. The learned counsel for the revision petitioner argued
that the offence under Sections 55(h) and 55(i) of the Act are
distinct and different offences and the offence under Section 55
(i) is not a lesser offence, for which an accused could not be
convicted though charged for the offence under Section 55(h). A
reading of Section 464 Cr.P.C. makes it clear that it is possible
for the Appellate or Revisional court to convict an accused for an
offence, for which no charge was framed unless the Court is of
the opinion that failure of justice was occurred.
10. On perusing the records in this case, it is evident that
the accused was aware of the basic ingredients of the offence, for
which he is being convicted. On going through the judgment of
the trial court and the appellate court, it is clear that the accused
was found in possession of IMFL for sale. Once possession of
IMFL is established, the accused, who claims that it was not a
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conscious possession, has to establish it because how he came to
be in possession is within his special knowledge. Section 64 of
the Act stipulates that in prosecution until the contrary is proved,
it shall be presumed that the accused has committed an offence
in respect of the offence under Section 55 etc. The learned
Magistrate has imposed only reasonable sentence, on considering
the facts and circumstances of the case. Since the Appellate
Court has not committed any error of fact or law in convicting
the accused under Section 55(i) of the Act, I find no reason to
interfere with that conviction and sentence.
11. Therefore, this Revision Petition is without any merit
and it is dismissed.
(M.L. JOSEPH FRANCIS)
Judge
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