IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 217 of 2009()
1. VASANTHAKUMAR @ NARAYANAN
... Petitioner
Vs
1. STATE OF KERALA, REP BY THE
... Respondent
For Petitioner :SRI.R.SUNIL KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.217 of 2009
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Dated this 31st day of July 2009
ORDER
This revision is in challenge of judgment of learned Assistant
Sessions Judge, Mavelikkara in S.C.No.467 of 2004 in criminal appeal
No. 509 of 2006 confirming conviction and sentence of petitioner for
offences punishable under Sec.8(1) and (2) of the Abkari Act (for short,
“the Act”) for alleged possession of 900ml of illicit arrack. According to
the prosecution, petitioner was found possessing the contraband on
20-04-2000 at about 8.15 p.m. Learned counsel contends that
conviction and sentence of petitioner are not legal and proper.
2. PW1, Preventive Officer who is said to have detected the
offence and PW2, guard who is said to have accompanied PW1 have
given evidence that on 20-04-2000 while on patrol and they reached
the place of occurrence they found petitioner carrying a bundle which
on examination was found to contain illicit arrack in a plastic bottle.
PW1 drew sample of 200ml from the contraband and the same as well
as the rest were properly sealed, packed, labelled and taken to
custody as per Ext.P1, mahazar. Petitioner was arrested at the spot.
Ext.P2 is the arrest memo. Notice of arrest was given to the wife of
petitioner. Ext.P3 is produced to prove service of notice. PWs.1 and 2
identified MO1, plastic bottle in which petitioner was allegedly carrying
the contraband. PW3, independent witness is an attestor in Exts.P1 to
Crl.R.P.No.217 of 2009 2
P3. Though in chief examination he stated that he signed the mahazar
(Ext.P1) for seizure for arrack from petitioner, in cross examination he
denied that and claimed that he had not seen Excise officials preparing
the mahazar. It came out in evidence that PW3 is closely acquainted
with petitioner. PW5, Excise Inspector claimed that on 20-04-2000
itself petitioner was produced before him along with the material
objects and records. Material objects were produced on court on 22-
04-2000. Till then, the same were in his safe custody. PW4 is the
Officer who succeeded PW5. He proved Ext.P4, report of chemical
examination.
3. It is true that material objects were produced in court only
on 22-04-2000 though alleged detection of the offence was on
20-04-2000 (at 8.15 p.m). But, the delay of two days is not sufficient
to discard the evidence of PW1 and 2 in the circumstances which I
have stated above PW5 has given evidence that until production in
court the material objects were in his safe custody. Evidence of PWs.1
and 2 gets corroboration from PW3 also to some extent. Courts below
have considered the evidence and reached the conclusion that
petitioner was found in possession of contraband as alleged by the
prosecution. There is little reason to interfere.
4. Learned Assistant Sessions Judge sentenced petitioner to
undergo simple imprisonment for one year and payment of fine of
Rs.100000/- with default sentence of imprisonment for three months.
Crl.R.P.No.217 of 2009 3
Learned counsel submitted that during the period of investigation
petitioner was detained for some time and that since 20-02-2009
onwards, he is undergoing imprisonment. Learned counsel requested
that leniency may be shown to the petitioner.
5. Though petitioner was implicated in another case, learned
counsel submitted that he was acquitted in that case. Considering the
fact that contraband was seized was only 900ml and since petitioner is
undergoing imprisonment from 20-02-2009 onwards I am satisfied that
period of imprisonment already undergone by petitioner is sufficient in
the ends of justice so far as substantive sentence is concerned. I am
also inclined to modify the default sentence for non payment of fine as
simple imprisonment for one month.
Resultantly this revision is allowed in part to the following extent:
1. Substantive sentence awarded to the petitioner is modified, confined
and limited to the period of imprisonment undergone till day.
2. Default sentence for non payment of fine is modified as simple
imprisonment for one month.
Trial court shall issue modified warrant forthwith to the
Superintendent of Prison where petitioner is detained.
THOMAS P JOSEPH, JUDGE
Sbna/