IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2979 of 2003()
1. THANKAPPAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.GEORGEKUTTY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/08/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.2979 OF 2003
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Dated 2nd August, 2010
O R D E R
Petitioners are accused 1 and 2 in
S.T.2077/1996 on the file of Judicial First
Class Magistrate-III, Thrissur. They were
convicted and sentenced to simple
imprisonment for three months and fine of
Rs.25,000/- and in default simple
imprisonment for six months each for the
offence under Section 55(a) of Abkari Act.
Third accused was acquitted finding that
prosecution did not establish that he was
owner of the vehicle. Petitioners
challenged the conviction and sentence
before Sessions court, Thrissur in
Crl.A.422/2001. Learned Additional Sessions
Judge on re-appreciation of evidence
CRRP 2979/03 2
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. Argument of the learned counsel
is that there is no independent evidence to
prove that petitioners were transporting
contraband liquor and relying on the evidence
of Pws.1 to 3 alone, courts below should not
have convicted them. It was argued that
petitioner is the driver and second
petitioner is the cleaner of the lorry and
contraband article was seized from the built in
tank concealed in the vehicle and in the
absence of evidence to prove that it was
concealed with the knowledge of the
petitioners, petitioners should not have been
CRRP 2979/03 3
convicted. Finally, learned counsel argued
that as the incident occurred in 1996,
substantive sentence may be avoided.
4. Learned Public Prosecutor pointed
out that Ext.P3 certificate of chemical
analysis establish that contraband article
contained 94.64% by volume of Ethyl Alcohol
and there is no reason to interfere with the
conviction or the sentence.
5. Prosecution case is that on
17/9/1996 at about 11.15 p.m lorry KL-7/L-3427
was found parked on the side of National
Highway in front of Indian Coffee House at
Mannuthy. First petitioner was the driver and
second petitioner, the cleaner. Getting
suspicious Pws.1 to 3 Excise Officials checked
the vehicle and it was found that vehicle was
not having any valid license or permit. When
lorry was examined, it was found that in two
CRRP 2979/03 4
tanks 2000 liters of spirit was being
transported. The spirit in the vehicle was
seized and Ext.P1 mahazar was prepared and
three representative samples were also taken.
Petitioners were arrested. Samples were
produced in court and sent for chemical
analysis and obtained Ext.P3 report. Under
Ext.P2 occurrence report case was registered.
On the final report being filed, learned
Magistrate took cognizance of the offence
under Section 55(a) of Abkari Act. Petitioners
and third accused pleaded not guilty.
Prosecution examined four witnesses and marked
three exhibits. Petitioners did not adduce
any evidence. They did not explain possession
of the spirit found in the vehicle, when
questioned under Section 313 of Code of
Criminal Procedure. Learned Magistrate accepted
the evidence of Pws.1 and 4 and found that
CRRP 2979/03 5
petitioners were possessing 2000 liters of
spirit in violation of the provisions of the
Abkari Act and Rules and therefore, convicted
them for the offence under Section 55(a) of
Abkari Act. Learned Sessions Judge appreciated
the evidence and confirmed the findings.
6. Learned counsel argued that when
Pws.3 and 4 independent witnesses to Ext.P1
mahazar turned hostile to the prosecution,
evidence of Pws.1 and 2 should not have been
accepted. I have gone through the evidence of
Pws.1 and 2 and Ext.P1 mahazar. No material
contradictions were pointed out. Fact that
independent witness to the scene mahazar turned
hostile to the prosecution, does not mean that
evidence of an Excise Officials is to be
disbelieved. There is no rule or law that
evidence of an Excise Official or a police
officer is either to be disbelieved or to be
CRRP 2979/03 6
viewed with suspicion. Evidence of Pws.1 and 2
is fully corroborated by Ext.P1 mahazar.
Courts below on proper appreciation of
evidence accepted the evidence of Pws.1 and 2
and found that petitioners being, the driver
and cleaner of the lorry KL-7/L-3427, were
transporting 2000 liters of spirit when it was
detected at about 11.15 p.m on 17/9/1996.
7. Ext.P3 report establishes that it is
spirit. In such circumstances, conviction of
the petitioner for the offence under Section 55
(a) of Abkari Act is perfectly legal.
8. Then the only question is with
regard to the sentence. Considering the huge
quantity of spirit being transported, I find no
reason to interfere with the sentence also.
Even though sentence as on the date of
commission of the offence is punishable with
imprisonment for a term which may extend to
CRRP 2979/03 7
two years, learned Magistrate sentenced the
petitioners only to simple imprisonment for
three months. Fine of Rs.25,000/- is the
minimum fine provided under the Abkari Act.
In such circumstances, there is no reason to
interfere with the conviction or the sentence.
Revision is dismissed. Petitioners are
directed to appear before the Judicial First
Class Magistrate-III, Thrissur on 12/8/2010.
Judicial First Class Magistrate is directed to
execute the sentence.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.