E. L. Roy v. Excise Inspector, Nileshwar Range & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938** **Crl.Rev.Pet.No. 1559 of 2002 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO. 42/1999 of ADDITIONAL SESSIONS JUDGE (ADHOC-1), KASARAGOD DATED 29-10-2002** **AGAINST THE JUDGMENT IN CC 131/1997 of JUDICIAL FIRST CLASS MAGISTRATE-II,HOSDRUG DATED 11-01-1999** **REVISION PETITIONER(S)/APPELLANT-ACCUSED::** **-----------------------------------------** **E.L.ROY, S/O. EZHAROAD LAZAR, KAROTTUMCHAL DESOM, MALOM VILLAGE, HOSDURG TALUK.** **BY ADVS.SRI.SUBHASH CYRIAC SMT.SHEEBA JOSEPH SRI.K.K.SIVARAMAN** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE::** **----------------------------------------------** **1. EXCISE INSPECTOR, NILESHWAR RANGE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, RANMOHAN PALACE COMPOUND,, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SMT. SATHI V.P.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1559 of 2002 ---------------------------------------------Dated this the 17[th] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.42/1999 of Additional Sessions Judge (Adhoc-1), Kasaragod u/s.55(a) of the Abkari Act. He was charge sheeted in C.C.No.131/1997 by the Judicial First Class Magistrate-II, Hosdurg under S.55(a) of the Abkari Act. The charge against the accused is that on 24.12.1996 at 5 p.m., he was found carrying 15 packets of arrack on the back side of the ration shop at Malom town by the preventive officer attached to Excise Enforcement and Anti Narcotic Special Squad, Kasaragod. The accused was arrested, the contraband articles were seized and reaching at the Excise Office, he registered a crime. After completing investigation, Excise Inspector, Neeleshwar laid Crl.R.P. No.1559/2002 2 charge in the trial Court. 2. During trial, prosecution examined PW1 to PW3 and marked Exts.P1 to P4. The material objects MO1 to MO3 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him and he did not adduce any defence evidence. The learned Magistrate convicted the accused under Section 55(a) of the Abkari Act, sentenced to rigorous imprisonment for six months and fine of 25,000/-. Against that, he₹ preferred Crl.Appeal No.42/1999 before Additional Sessions Court, Kasaragod, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 3. The learned counsel appearing for the revision petitioner contended that the place of occurrence was shifted during cross examination of PW1. The independent witness present there did not support the prosecution case. In the Crl.R.P. No.1559/2002 3 circumstance, the revision petitioner is entitled to get the benefit of doubt, which was not granted by the trial Court. 4. The learned Public Prosecutor contended that PW1 specifically mentioned the place of occurrence, which was proved during cross examination. Mahazar witness admitted his signature, which is sufficient to prove the seizure of the contraband articles. All contentions were appreciated by the trial Court and convicted the revision petitioner, therefore, no reason to interfere in the finding. 5. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of 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 Crl.R.P. No.1559/2002 4 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 interpreting with the above power. 6. While adverting to the argument advanced by the revision petitioner, I have examined whether there is any shifting of the place of occurrence. The prosecution examined the Preventive Officer, Anti Narcotic Special Squad, Kasaragod as PW1. His evidence shows that he was conducting patrol duty on 24.12.1996 at about 5 p.m and reached near Malom town, he got information that sale of arrack was being conducted on the back side of the ration shop at Malom town. When he arrived at the place of occurrence, the revision petitioner was found carrying a plastic bag on the back side of the ration shop. PW1 inspected the plastic bag and detected Crl.R.P. No.1559/2002 5 15 packets of arrack each containing 100ml. The arrack was taken into custody, after preparing Ext.P1 mahazar. He took 375ml as sample and sealed at the place of occurrence. PW1 also affixed the label in the sample. The independent witness present there attested mahazar. The accused and the contraband articles MO1 series, MO2 series and MO3 were entrusted in the Range office. During cross examination, PW1 admitted that the revision petitioner was found on the back side of the ration shop. But, in chief examination, he deposed that he was found in front of the hall of the ration shop. During cross examination of PW1, the mistake in the chief examination was rectified and he identified the place of occurrence as stated in Ext.P1. 7. PW2 attested Ext.P1 and identified the signature in Ext.P1, but he did not support the prosecution case. A perusal of the evidence, it is clear that the contraband articles were seized after preparing Ext.P1 in the presence of independent Crl.R.P. No.1559/2002 6 witness. Even though the revision petitioner raised a contention that MO1 to MO3 were seized from a pit near the ration shop, that was not confronted with the evidence of PW1. PW3 registered Ext.P2 crime and occurrence report. Ext.P3 is another crime and occurrence report prepared at the Excise Office. The Joint Chemical Examiner reported in Ext.P4 that 34.56% volume of ethyl alcohol was detected in the sample. The trial Court rightly analysed the evidence and convicted the accused. Even though revision petitioner contended that there is shifting of place of occurrence, no circumstances are brought out to believe that story. In the absence of such evidence, the defence contention is discarded. Analysing the evidence, it is found that the accused committed an offence punishable u/s.58 of the Abkari Act. In the result, the conviction and sentence u/s.55(a) of the Abkari Act is set aside. The appellant is convicted u/s.58 of the Abkari Act and sentenced to imprisonment for one Crl.R.P. No.1559/2002 7 month and fine of 15,000/-, in default of payment of fine,₹ simple imprisonment for two months (relied decision in **Sasikumar** v. **State of Kerala** [2012 (4) KLT 867 (SC)]. The period of detention undergone by the revision petitioner during trial and investigation shall be entitled to set off against the terms of imprisonment. Crl.R.P. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd