Chekku v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938** **CRL.REV.PET.NO. 1107 OF 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.47/1999 OF THE SESSIONS COURT, KOZHIKODE DATED 25-07-2002** **AGAINST THE JUDGMENT IN CC NO.137/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,THAMARASSERY DATED 31.12.1998** **-----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED : ---------------------------------------** **CHEKKU, 64 YEARS, NELLULI KANNANKUTTY, THAZHEKODE AMSOM & DESOM, KOZHIKODE TALUK AND DISTRICT.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT(S)/STATE :** **-------------------** **STATE OF KEARLA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **----------------------Crl. Rev.Pet. No.1107 of 2003 ---------------------------------Dated this the 3[rd] day of August, 2016** ## **O R D E R** This revision petition is preferred by the accused against the concurrent judgment in Criminal Appeal No.47 of 1999 of the Additional Sessions Judge-III, Kozhikode. He was charge sheeted by the Judicial First Class Magistrate Court-I, Thamarassery in C.C. No.137 of 1997 for the offence under Sec.55(g) of the Abkari Act. The learned Magistrate convicted the accused under Sec.55(g) of the Abkari Act and sentenced him to simple imprisonment for one year and fine of Rs.25,000/- in default, simple imprisonment for three months. Against that, he preferred the above Criminal Appeal before the Additional Sessions Judge-III, Kozhikode, where the learned Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 02.12.1996 at 4.00 p.m., while the excise officials were conducting patrol duty, they found the accused carrying Crl. Rev.Pet. No.1107 of 2003 2 20 litres of wash in a plastic jar for brewing arrack in front of the house of one Chekku in Thazhekkod Amsom Desom. The accused was arrested and the contraband articles were seized and thereafter registered a crime. After completing investigation, Excise Inspector, Kunnamangalam laid charge in the trial court. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P5 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The main argument advanced by the learned counsel appearing for the revision petitioner is that there was no identity of the sample at the time when it was produced in the trial court. There is no guarantee that the same article was produced in the trial court. 4. In reply, the learned Public Prosecutor submitted that no reasons are stated to disbelieve the evidence of seizure. Ext.P5 is sufficient to prove that the Crl. Rev.Pet. No.1107 of 2003 3 sample was sealed at the place of occurrence and produced in the trial court on the next day itself. Learned counsel also contended that the entry in Ext.P4 that the sample was entrusted to special messenger for forwarding to the chemical examiner’s lab, but his name was not mentioned in the report which is not a ground to discard that evidence. 5. While Adverting to the above contentions advanced by both sides, I have perused the oral and documentary evidence in this case for ascertaining whether the court below have considered and appreciated the evidence properly. The Preventive Officer, Excise Range Office, Kunnamangalam was examined as PW1 who deposed that on 2.12.1996 at 4.00 p.m., while he was conducting patrol duty within his jurisdiction and reached at the place of occurrence, the accused was found carrying MO1 and proceeding from west to east. On seeing the excise party, he became frightened and tried to escape from there. PW1 intercepted him and inspected MO1 in which, he detected Crl. Rev.Pet. No.1107 of 2003 4 20 litres of wash for brewing arrack. He took 300 m.l. as sample in a bottle and sealed it at the place of occurrence itself. He affixed a label and sealed on it. The independent witnesses present there put their signature in the label. He also prepared Ext.P1 mahazar in which, independent witnesses and the accused signed. The accused was enlarged on bail. Even though, these witnesses were cross examined by the defence counsel, nothing has been brought out to discredit their oral evidence. Therefore, all the procedure formalities provided under the Abkari Act were strictly and carefully followed by PW1 at the time of seizure of MO1. 6. PW2, the Excise Guard attached to the office of PW1 supported the seizure. PW2 affixed his signature in Ext.P1 and also deposed the same version given by PW1. The independent witnesses PW3 and PW4 attested Ext.P1. PW5 completed investigation in this case and laid charge in the trial court. He admitted that PW1 produced the sample, MO1 and the accused in his office, on the basis of that he registered the case. Ext.P3 is the crime Crl. Rev.Pet. No.1107 of 2003 5 and occurrence report. He prepared Ext.P4 requisition for sending the sample to the chemical examiner's lab through court without any delay. The chemical examination result Ext.P5 shows that the sample contained 10.40% of ethyl alcohol. Nothing has been brought out to discredit the evidence of this witness. The evidence of these witnesses show that at the time of seizure, PW1 carefully packed and sealed the sample in the presence of independent witnesses and he affixed a label on it. The independent witnesses PW3 and PW4 admitted their signature in Ext.P1. Therefore, their evidence is believable. I am of the opinion that both courts appreciated the evidence and convicted the accused on the basis of evidence. There is no miscarriage of justice and misreading of evidence. Prosecution evidence is sufficient to warrant a conclusion that the revision petitioner was in possession of wash as stated by the excise officials. 7. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of Crl. Rev.Pet. No.1107 of 2003 6 justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. 8. Learned counsel appearing for the revision petitioner submitted that the revision petitioner is now aged 83 years and he prays some leniency in the sentence. Apex Court in **Ved Prakash v. State of Hariyana [AIR 1981 SC 643]** held that the trial court must gather relevant materials regarding social back ground and personal factors of the offenders for the Crl. Rev.Pet. No.1107 of 2003 7 purpose of sentencing. Today the revision petitioner present, he is unable to walk and no criminal antecedents reported against him. Considering the nature of offence and the delay of 19 years the sentence imposed by the Judicial First Class Magistrate Court-I, Thamarassery is modified as follows: Revision Petitioner is sentenced to simple imprisonment till rising of the court and fine of Rs.25,000/- (Rupees twenty five thousand only) under Sec.55(g) of the Abkari Act. He is directed to surrender in the trial court to undergo the modified sentence failing which, the learned Magistrate shall issue non bailable warrant forthwith. This revision petition is disposed of accordingly. ## Sd/- **P.D. RAJAN, JUDGE** NS/04/08/2016 / True Copy / P.A. To Judge