Gouri Amma v. The Excise Inspector, Hosdurg Excise Range & The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 Crl.Rev.Pet.No. 1134 of 2003 ------------------------------ AGAINST THE JUDGMENT IN CRA 96/1999 of ADDL. SESSIONS JUDGE (ADHOCI), KASARAGOD DATED 03-01-2003 AGAINST THE JUDGMENT IN CC 444/1997 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, HOSDRUG DATED 19.3.1999 REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------- GOURI AMMA, AGED 60 YEARS, W/O.KRISHNAN, RESIDING AT CHOUKI, PANAYAL VILLAGE, HOSDRUG TALUK. BY ADV. SMT.T.SUDHAMANI RESPONDENTS/COMPLAINANT & STATE: ------------------------------ 1. THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ab **P.UBAID, J.** **--------------------------------------Crl.R.P.No.1134 of 2003** **---------------------------------------** Dated this the 19[th] day of March, 2014 ## **O R D E R** The revision petitioner herein faced a prosecution before the Judicial First Class Magistrate Court II, Hosdurg, on the allegation of illicit possession of 5 liters of arrack, which is prohibited in the State of Kerala, punishable under Section 55(a) of the Kerala Abkari Act with imprisonment upto two years and a minimum fine of Rs.25,000/-, as the section stood before amendment. The prosecution case is that at about 5.30 pm on 1.5.1997 the revision petitioner was found possessing 5 liters of arrack contained in 50 packets of 100 ml capacity. She was arrested on the spot by the Excise Preventive Officer of the Excise Range, Hosdurg and the contraband article was seized as per mahazar. On the basis of seizure a crime was registered against the revision petitioner by the Excise Inspector, and after necessary investigation a complaint was filed before the trial court by the Excise Inspector. 2. The revision petitioner pleaded not guilty when **Crl.R.P.No.1134 of 2003** 2 the particulars of offence were read over and explained by the learned Magistrate, and the case proceeded for trial. The prosecution examined three witnesses in the trial court and marked Exhibits P1 to P3 documents and also MO1 to MO3 material objects. When examined under Section 313 Cr.P.C also the revision petitioner denied the incriminating circumstances and maintained a defence of total denial. On an appreciation of the evidence the trial Court found her guilty under Section 55(a) of the Kerala Abkari Act. On conviction thereunder she was sentenced to undergo rigorous imprisonment for six months and also to pay a fine of 25,000/-.₹ 3. Aggrieved by the conviction and sentence the accused approached the Court of Session, Kasargod with Crl.A.No.96/1999. The learned Sessions Judge concurred with the findings of the trial court and confirmed the conviction and sentence. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence. 4. Of the three witnesses examined in the trial court, PW3 is the Preventive Officer who detected the offence and PW1 is an independent witness who attested Ext.P1 seizure **Crl.R.P.No.1134 of 2003** 3 mahazar. PW2 is only the Excise Inspector who registered the crime in this case. PW1 admitted his signature in Ext.P1 seizure mahazar, but stated before the court that he had not in fact seen the alleged detection. Of course, no effective cross examination was made by the learned Assistant Public Prosecutor. Any way PW1 has admitted his signature in the seizure mahazar, for which he has no explanation. There is reason to believe that PW1 deliberately turned hostile during trial to help the accused. PW3 has given definite evidence regarding the arrest of the accused on the spot, and also regarding the seizure of 5 liters of arrack from her possession, contained in 50 packets of 100 ml capacity. He has also given definite evidence regarding the sampling process. He is definite that sample was taken from the total quantity, and it stands proved that the very same sample was sent for analysis to laboratory from the court. PW3 has also given evidence that by taste and odour the liquid contained in the packets was identified as arrack. This particular aspect in his evidence stands not challenged. Nothing could be brought out in the cross examination of PW3 to discredit his evidence, or to disprove the alleged seizure. The evidence given by PW3 is fully consistent with the contents of Ext.P1 seizure mahazar. **Crl.R.P.No.1134 of 2003** 4 The accused has no satisfactory explanation, how or why or in what circumstance she happened to be arrested by the excise party. The case of detection alleged by the prosecution stands well proved by the evidence of PW3. 5. The learned counsel for the revision petitioner placed reliance on **Revi v. State of Kerala [2011(3) KLT 353]** . That was a case where this court found the possibility of tampering with the article due to the delay in producing the properties before Court. The Court also found on evidence that there was nothing to link the contraband seized from the possession of the accused with the sample reached in the hands of the chemical examiner. There is no such situation in this case. Evidence well proves that the very same sample collected from the total quantity of 5 liters of arrack seized from the possession of the accused was analysed in the laboratory by the chemical examiner. Of course it is true that there was some delay in producing the properties in Court. But there is absolutely nothing to show that the said delay had in any manner caused any prejudice to the accused, or that there was any possibility of any sort of tampering with the properties. 6. In view of the findings above, the conviction in **Crl.R.P.No.1134 of 2003** 5 this case under Section 55(a) of the Kerala Abkari Act is liable to be confirmed. I do not find any irregularity, illegality, or impropriety in the findings of the court below or in the conviction under Section 55(a) of the Kerala Abkari Act. However, this Court is inclined to modify the sentence in this case. The accused in this case is a lady now aged 70 years. It was submitted that she is bed ridden due to some ailments. The offence was detected on 1.5.1997 and the accused was convicted by the trial court on 19.3.1999. Now we are in 2014. Considering the long lapse of years, and also considering the fact that the revision petitioner is an old lady aged about 70 years, I am inclined to reduce the jail sentence in this case to a very reasonable period. Of course as regards the fine sentence no interference is possible because the fine imposed by the trial court is the minimum possible under the law. Of course, in view of Section 354(4) of Cr.P.C the minimum of three months will have to be imposed when the offence is punishable with imprisonment upto two years. However, I find some special circumstances in this case for deviation from the rule of minimum sentence under Section 354(4) Cr.P.C. There is reason to believe that the revision petitioner has already undergone **Crl.R.P.No.1134 of 2003** 6 some punishment by way of mental stress during the last 17 years. In such a circumstance, the very minimum possible under the law will serve the ends of justice when there is a minimum fine sentence of 25,000/-. Accordingly, the jail sentence in this₹ case is reduced to imprisonment till raising of the Court. Subject to this modification in sentence the revision petition can be dismissed, confirming the conviction and sentence under Section 55(a) of the Kerala Abkari Act. In view of reduction of the substantive sentence considerably by which the accused is greatly benefited, the default sentence imposed by the trial court is enhanced to rigorous imprisonment for three months. In the result, this revision petitioner is dismissed, confirming the conviction under Section 55(a) of the Kerala Abkari Act, however subject to the modification in sentence that the jail sentence imposed by the trial court, and confirmed in appeal, will stand reduced to imprisonment till rising of the court. The fine sentence imposed by the court and confirmed in appeal is maintained, subject to the modification that in default of payment of fine the revision petitioner will have to undergo rigorous imprisonment for three months. The revision petitioner is given one month's time to surrender before the trial court **Crl.R.P.No.1134 of 2003** 7 voluntarily to serve out the sentence and remit the amount of fine, on failure of which coercive steps shall be taken by the trial court to enforce the sentence and recover the amount of fine. **P.UBAID JUDGE** ab