Balan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934 Crl.Rev.Pet.No. 694 of 2006 ( ) ------------------------------CRL.A.155/2002 of III ADDL.D.C., KOLLAM CC.597/1997 of J.M.F.C.-III, PUNALUR REVISION PETITIONER(S)/APPELLANT/ACCUSED.: ----------------------------------------- BALAN, S/O.PADMANABHAN, MURALI BHAVAN, MEENAM WARD, KANNIMELTHERI, PATTAZHI VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S)/RESPONDENT/COMPLAINANT AND STATE.: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNICODE POLICE STATION KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. MADHU BEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## **P.S.GOPINATHAN, J.** ## **---------------------------------------Crl.R.P.NO. 694 OF 2006 ---------------------------------------Dated this the 9[th] day of October, 2012** ## **O R D E R** Revision petitioner is the accused in C.C.No.597/1997 on the file of the Judicial Magistrate of the First Class-III, Punalur. He was prosecuted by PW5, the Sub Inspector of Police Kunnicodu Police Station accusing offence under Section 55(a) of the Abkari Act with an allegation that at 4.30 P.M. on 17/2/1997, PW5, while moving on petrol duty with police officials found the revision petitioner possessing seven litres of illicit arrack in a jerry can which was marked as MO1. 2. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exhibits P1 to P3 and MO1 were marked. After closing the Crl.R.P.NO. 694 OF 2006 2 evidence for the prosecution, when questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence and advanced a plea of innocence. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.25,000 with a default sentence of simple imprisonment for a further period of three months. 3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.155/2002 before the Sessions Judge, Kollam. The Third Additional Sessions Judge, to whom the appeal was made over, by the impugned judgment dated 31/1/2006, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and Crl.R.P.NO. 694 OF 2006 3 propriety of the above conviction and sentence, this revision petition is preferred. 4. I have heard Adv. Smt. P.S.Preetha, the learned counsel appearing for the revision petitioner and Miss. Madhu Ben, the learned Government Pleader. Perused the judgments impugned. The learned counsel for the revision petitioner took me through the evidence on record. 5. PWs 1 and 2, who are attesters to Exhibit P1, denied of having witnessed the arrest of the revision petitioner or seizure of the contraband. PW5 had given evidence in support of the prosecution case. He would depose about the detection, seizure and arrest of the revision petitioner. He had also proved Exhibit P1 seizure mahazar and registration of the case by Exhibit P2 First Information Report. He would further depose that MO1 contained seven Crl.R.P.NO. 694 OF 2006 4 litres of illicit arrack. The nature of the same was convinced by smell and taste. 150 mls was taken as sample and it was sealed then and there. The sample was forwarded to the chemical examiner and obtained Exhibit P3 report certifying that the sample contained 29% of the ethyl alcohol by volume. By Exhibit P3, the nature of the liquid seized is well established. There is no case that it was a permitted liquor or acquired from a lawful source. Therefore, it is legitimate to presume that it was illicit liquor. PWs 3 and 4 are the Police Constable and the Head Constable, who were accompanying PW5. They had given corroborating evidence. Though PWs 3 to 5 were subjected to searching cross-examination, no material was disclosed to disbelieve them. There is nothing on record to show that PWs 3 to 5 were any way motivated against the revision petitioner or that Crl.R.P.NO. 694 OF 2006 5 the revision petitioner was falsely implicated for whatever reasons. 6. The learned counsel for the revision petitioner, relying upon the decision reported in Ravi v. State of Kerala [2011(3)KLT 353], would submit that there was delay in producing the material objects. In fact no question was put to PW5 as to when the material objects were produced or as to what was the reason for delay, if any. The judgment impugned would show that on verifying the records, the learned Additional Sessions Judge found that the material objects were produced only on 1/3/1997. The charge sheet was produced on 20/3/1997. Charge sheet was filed within 31 days. It is a case of speedy investigation. It appears that there is delay of 13 days in producing the material objects. The evidence of PW5 and the charge sheet Crl.R.P.NO. 694 OF 2006 6 would show that PW5 was in the of process investigation. In the event, the material objects were retained in the police station for the purpose of investigation, it cannot be said that there is It is crucial to note that unnecessary delay. regarding the delay, no question was put to PW5 in cross-examination. Before the trial court, the revision petitioner had no any such case of delay. Neither there is any case of false implication or tampering of material objects. Therefore, I find that there is no unnecessary delay in this case and the revision petitioner is not entitled to an order of acquittal on ground of delay. 7. Relying upon the decision reported in Mohanan v. State of Kerala (2007(1) KLT 845), the learned counsel would submit that in an identical set of facts, a devision bench of this court found that Crl.R.P.NO. 694 OF 2006 7 mere possession of the liquor may not attract offence under Section 55 (a) of the Abkari Act. That was a case relating to permitted liquor. Here admittedly the contraband seized was arrack which was prohibited. In that case, it was found that only an offence under Section 63 of the Abkari Act is made out because the offending factor is the excess quantity than permitted. Here in this case, the liquid seized was illicit arrack. Therefore, I find that offence under Section 58 of the Abkari Act is established and not offence under Section 55(a) of the Abkari Act. Therefore, the revision petitioner is liable to be convicted for offence under Section 58 of the Abkari Act after acquitting for offence under Section 55(a). I find that a sentence of simple imprisonment for four months with a fine of Rs.15,000/- would meet the ends of justice. Crl.R.P.NO. 694 OF 2006 8 In the result, this revision petition is allowed in part. While setting aside the conviction and sentence for offence under Section 55(a) of the Abkari Act, the revision petitioner is convicted and sentenced to simple imprisonment for four months and a fine of Rs.15,000/- (fifteen thousand only) with a default sentence of simple imprisonment for a further period of three months. The under-trial imprisonment, if any, shall be set off. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and report compliance. ## Sd/- **P.S.GOPINATHAN JUDGE** //TRUE COPY// P.A. TO JUDGE DSV/- Crl.R.P.NO. 694 OF 2006 9