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
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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
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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
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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
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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