A.K. Narayanan v. Excise Inspector, Neeleswar Range, Neeleswar, Hosdurg Taluk, Kasaragod and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** **Crl.Rev.Pet.No. 1066 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.283/2001 of SESSIONS COURT,KASARAGOD DATED 29-03-2005** **AGAINST THE JUDGMENT IN CC 625/1997 of JUDICIAL MAGISTRATE OF FIRST CLASS-I,HOSDURG DATED 26-09-2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **A.K.NARAYANAN, AGED 56 YEARS, S/O.KANNAN, ARAYIKKADAVU, UDAYAGIRI DESOM, KAYYOOR VILLAGE,, HOSDURG TALUK.** **BY ADV. SRI.T.MADHU** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:** **--------------------------------------** **1. EXCISE INSPECTOR, NEELESWAR RANGE, NEELESWAR,, HOSDURG TALUK, KASARGOD.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1066 of 2005 ---------------------------------------------Dated this the 19[th] day of September, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl. Appeal No.283/2001 of Sessions Judge, Kasaragod. He was charge sheeted in C.C. No.625/1997 by the Judicial First Class Magistrate-I, Hosdurg u/s.55(a)of the Abkari Act. After trial, the learned Magistrate convicted the accused and sentenced to rigorous imprisonment for six months and fine of 25,000/-, in default rigorous imprisonment for 1 ½₹ months u/s.55(a) of the Abkari Act. Against that, the accused preferred the above Crl.Appeal before Sessions Court, Kasaragod, where the learned Sessions Judge set aside the conviction, altered and convicted under Section 58 of the Abkari Act and sentenced to simple imprisonment for two months and fine of 15,000/- with default sentence. Being₹ Crl.R.P. No.1066/2005 2 aggrieved by that the accused preferred this revision petition. 2. The charge against the accused is that on 13.7.1997 at 5 p.m., the accused was found in possession of 2 ½ litres of arrack in a five litres black plastic can near the Kayyoor Government Hospital by the preventive officer, Excise Enforcement and Anti Narcotic Special Squad, Kasaragod. He was arrested and registered a crime. Thereafter, the Excise Inspector, Nileshwar laid charge in the trial Court. During trial, prosecution examined PW1 to PW3 and marked Exts. P1 to P3 and also admitted MO1 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused u/s.55(a) of the Abkari Act. 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the accused is no more. In the circumstances, this Court Crl.R.P. No.1066/2005 3 obtained a report from the Excise Inspector, Nileshwar along with Death Certificate of the revision petitioner issued from Kayyur Cheemeni Grama Panchayat, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 06.08.2010. No legal heirs are impleaded in this case for continuing the revision. 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies Crl.R.P. No.1066/2005 4 during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in _**Pranab Kumar Mitra**_ v. _**State of W.B. and another**_ [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the Crl.R.P. No.1066/2005 5 whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. While adverting to the above argument, I have examined the finding of the Court below. The learned Magistrate convicted the accused u/s.55(a) of the Abkari Act, which was set aside by the appellate Court and convicted the accused u/s.58 of the Abkari Act. Section 58 of the Abkari Act reads as follows: “58. **For possession of illicit liquor:** - Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.” ## This Court in _**Jose Kutty**_ v. _**State of Kerala**_ [2013 (1) KLT ## 434] held as follows: “The final report submitted shows that there is no allegation that the petitioner was in possession of the illicit liquor with the knowledge that it is illicit liquor. So also, none of the prosecution witnesses has a case that petitioner had the knowledge that he was holding a can containing illicit liquor. Crl.R.P. No.1066/2005 6 In such circumstances, possession of liquor with the knowledge that it is illicit liquor, cannot be assumed. Hence, in the absence of evidence, petitioner can only be convicted for the offence under S.63 of the Kerala Abkari Act. S.63 as it then stood, provides only be sentence of fine.” No evidence has been adduced by the prosecution to show that the accused was in possession of the illicit liquor with knowledge that it is illicit liquor. Prosecution examined PW1, the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Kasaragod to prove the seizure. His evidence shows that on 13.3.1997 at 5 p.m., while he was conducting patrol duty, the accused was found near Kayyoor Government Hospital with MO1. PW1 inspected MO1 in the presence of the independent witnesses, in which he detected 2 ½ litres of arrack. He seized MO1 after preparing Ext.P1 mahazar. He also took 200ml as sample for the purpose of sending it for chemical analysis. The contraband article and sample were seized at the place of occurrence itself. The balance arrack was also sealed. The accused was arrested. The accused and the contraband articles were produced Crl.R.P. No.1066/2005 7 before Excise Inspector, thereafter, he was released on bail. PW2 supported the above evidence and deposed that he registered Ext.P2 crime and occurrence report. He also obtained Ext.P3 analysis report. PW3 is an occurrence witness. He did not support the prosecution case. Analysing the evidence of these occurrence witnesses, it is clear that, in the final report, nothing has been brought out by the prosecution to show that the revision petitioner was in possession of illicit liquor with the knowledge that it is illicit liquor. There was no allegation against the revision petitioner in the final report or before Court by the occurrence witnesses that the revision petitioner was in possession of illicit liquor with the knowledge that he was holding MO1 can containing illicit liquor. In the circumstances, it cannot be presumed that the revision petitioner was in possession of liquor with the knowledge that it is illicit liquor. Therefore, the conviction u/s.58 of the Abkari Act is set aside. He committed the offence u/s.63 Crl.R.P. No.1066/2005 8 alone. Since the accused is no more, it is difficult to convict the accused under that Section. The Crl.R.P. is disposed of as above. **P.D. RAJAN, JUDGE.** acd