Johny @ Tony and Prem Kumar v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-03-31
Court Decision / Holding: The revision petition is partly allowed. The sentence is modified to six months’ rigorous imprisonment and an ₹10,000 fine, with default three months’ simple imprisonment.
Final Disposition: Partly allowed; sentence reduced from the original to six months’ RI and ₹10,000 fine (default three months imprisonment)

Parties to the Case

Appellants / Petitioners

Johny @ Tony
Prem Kumar

Respondents

State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Gopakumaran Nair
• Sri C. S. Dias

Counsels for Respondents

• Public Prosecutor, Smt. Madhuben

Case Synopsis & Summary

Johny alias Tony and Prem Kumar (the applicants) were convicted under Section 55(a) of the Abkari Act for illicit liquor seized in a mini-lorry near Jama-ath Mosque, Chalingad, Kodungallur. The prosecution case was built on the Excise Inspector (PW1) and other witnesses (PWs 2–4) with seizure mahazar Ext.P1 and Mos 1–4; the trial court convicted A1 and A2 and acquitted A3, while the appeal (Crl.Appeal No.488/2003) upheld the conviction and sentence. The revision petition challenges both the evidence and the sentence, arguing that PW1 had no direct knowledge of the arrest of the second accused and that the PW testimonies were inconsistent, casting doubt on credibility. The State counters that eyewitness testimony need not be singularly decisive and that the seizure itself, aided by chemical examination, corroborates the case. On perusal, the High Court finds no material to disbelieve the chain of evidence or the concurrent findings; nonetheless, it scrutinizes the sentence, noting the sentencing limits for a Magistrate of first class under Cr.P.C. Section 29, and the amendments that later raised the fine ceiling. Citing Pankajbhai Nagjibhai Patel v. State of Gujarat and another (AIR 2001 SC 567) to emphasize that non-obstante provisions cannot enlarge a magistrate’s powers beyond statutory limits, the court partially allows the revision by reducing the sentence to six months’ rigorous imprisonment and a fine of ₹10,000 (with default imprisonment of three months).

Provisions of Law Cited

Abkari Act, Section 55(a)Cr.P.C., Section 29Negotiable Instruments Act, Section 142

Legal Doctrines & Maxims

Non-obstante clause (non-obstante limb)
Limitation on Magistrate’s sentencing powers under Cr.P.C. Section 29

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that PW1 lacked direct knowledge of the arrest of the second accused and that the testimonies of PW1 and PW2 were inconsistent, raising credible doubts about the prosecution case. They urged that the revisional jurisdiction should rectify an apparently illegal sentence imposed by the trial court.

Contentions of Respondents

The State contended that the direct oral testimony of PW1 and PW2 is not alone sufficient to prove the offence; the seizure and corroborative evidence (Exts; mos) sustain guilt, and the concurrent findings should be upheld. The court should not interfere with the appellate findings on guilt but may consider the sentence if warranted by jurisdiction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pankajbhai Nagjibhai Patel v. State of Gujarat and another	AIR 2001 SC 567	Positive	Cited to illustrate that non-obstante provisions (Section 142 of the NI Act) do not expand magistrate powers beyond statutory limits; used to justify limiting the sentence within Cr.P.C. constraints.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 31ST DAY OF MARCH 2015/10TH CHAITHRA, 1937** **Crl.Rev.Pet.No. 3073 of 2004 ( )** **---------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 488/2003 of III ADDITIONAL SESSIONS JUDGE (ADHOC, FAST TRACK COURT NO.I THRISSUR DATED 30.7.2004. AGAINST THE ORDER/JUDGMENT IN CC 824/1998 of J.M.F.C.-I, KODUNGALLUR DATED 22-07-2003.** **REVISION PETITIONER(S)/APPELLANTS IN CRL.A.NO.488/2003/ACCUSED 1 & 2 IN C.C.NO.824/1998.::** **1. JOHNY @ TONY, AGED 35 YEARS,** **S/O. CHACKO, MADAVAN, MALAYATTUR VILLAGE** **ALUVA TALUK.** **2. PREM KUMAR, AGED 27 YEARS, S/O. AVARACHAN, PALISSERY, MALAYATTUR VILLAGE ALUVA TALUK.** **BY ADVS.SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS** **RESPONDENT(S)/RESPONDENT IN CRL.A.NO.488/2003/COMPLAINANT IN** **C.C.NO.824/1998.:** **STATE OF KERALA, REPRESENTED BY THE** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR ADV. SMT. MADHUBEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-03-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No. 3073 of 2004 ---------------------------------------------Dated this the 31[st] day of March, 2015 ## **ORDER** The revision petitioners are accused in C.C.No.824/1998 of Judicial First Class Magistrate Court-I, Kodungallur, which was registered for the offence punishable u/s.55(a) of the Abkari Act. The prosecution allegation was that on 28.5.2007 at 2.30 p.m., the Excise inspector, Kodungallur had seized 9504 bottles of illicit liquor from a Mini-lorry bearing registration No.KLQ A4743 near to the road on the northern side of Jama-ath Mosque at Chalingad, which was carried in that vehicle without any valid documents. They registered O.R.7/97 of Kodungallur Excise Range and after investigation, they laid charge before Judicial First Class Magistrate Court-I, Kodungallur. 2. To prove the allegation, the prosecution examined Crl. R.P. No.3073/20014 2 PWs 1 to 4 and marked Exts.P1 to P3 as evidence. Mos 1 to 4 were also marked in evidence. The incriminating circumstances brought out in evidence were denied by the petitioners. The trial Court, after analysing the evidence, convicted A1, A2 and acquitted A3. Against that, they preferred Crl.Appeal No.488/2003, wherein the conviction and sentence passed against the revision petitioners were confirmed. 3. The learned counsel appearing for the revision petitioners contended that PW1 has no direct knowledge with regard to the arrest of the 2[nd] accused. There is no convincing evidence for attracting the alleged offence. The inconsistent versions of PWs 1 and 2 create doubt in the credibility of the prosecution case. Therefore, the sentence passed by the trial Court is illegal and is to be rectified by invoking the revisional jurisdiction. 3 Crl. R.P. No.3073/20014 4. The learned Public Prosecutor resisted the above contention and contended that the direct oral testimony of PWs 1 and 2 is not sufficient to prove the offence. Therefore, no interference is necessary in the findings of the Courts below. 5. For the purpose of satisfying the correctness and legality of the finding recorded by the Courts below, I have perused the oral and documentary evidence in this case. I have also considered the propriety of the finding recorded by the Courts below. The offence was detected by PW1 while he was working as Excise Inspector, Kodungallur. Ext.P1 is the seizure mahazar. Mos 1 to 4 series were seized from the vehicle and sent for chemical examination. Analysing the oral evidence of PW1, it is found that there is no reason to doubt the seizure of the article as alleged in the case. 4 Crl. R.P. No.3073/20014 6. In this context, I have also verified whether there is any evidence with regard to the arrest of the 2[nd] accused. PW2 in his evidence stated that they chased the vehicle in the department vehicle and stopped the mini lorry at Chalingad, from where the 2[nd] accused ran away. PW3 laid charge before Court. PW4 attested the mahazar, who is also an independent witness, and supported PWs 1 and 2. The mahazar was prepared by PW1. Analysing the oral testimony of PWs 1 to 4, it is revealed that nothing has been brought out to discard their evidence. Therefore, the concurrent finding with regard to the guilt of the accused is only to be confirmed. 7. The learned counsel for the revision petitioners submitted that the trial Court imposed a sentence of two years and a fine of 25,000/-. ₹ 8. In this context, I have verified the jurisdiction Crl. R.P. No.3073/20014 5 of the trial Magistrate for imposing sentence. According to Section 29 of the Cr.P.C., the Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ₹5,000/- before 23.6.2006. Now it is amended as three years imprisonment and fine not exceeding 10,000/-.₹ Here, in this case, the sentence was imposed on 22.7.2003. Therefore, the sentence imposed by the Court below was excess than its conferred jurisdiction. Therefore, interference on that point is necessary. 9. Apex Court, while dealing with offence u/s.138 of Negotiable Instruments Act, in **Pankajbhai Nagjibhai Patel** v. **State of Gujarat and another** [AIR 2001 SC 567] held that “thus, the non-obtante limb provided in Section 142 of the N.I.Act is not intended to expand the powers of a Magistrate of first class beyond what is fixed in Chapter III Crl. R.P. No.3073/20014 6 of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of first class in the matter of imposing a sentence as noticed above i.e., if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed 5,000/-.”₹ Therefore, the revision petitioners are sentenced to undergo rigorous imprisonment of six months and to pay a fine of 10,000/-, in default of payment of fine, they shall₹ undergo simple imprisonment for three months. The revision petition is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl. R.P. No.3073/20014 7 Crl. R.P. No.3073/20014 8