Pavithran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3197 of 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL. APPEAL NO.55/2001 of ADDITIONAL SESSIONS JUDGE,PATHANAMTHITTA DATED 25-08-2005** **AGAINST THE JUDGMENT IN CC 935/1997 of JUDICIAL MAGISTRATE OF FIRST CLASS,THIRUVALLA DATED 17-03-2001 REVISION PETITIONER(S/APPELLANT/ACCUSED:** **---------------------------------------** **PAVITHRAN, CHAMPILAKKATTU VEEDU, MEPPRAR MURI, PARINGARA VILLAGE, THIRUVALLA TALUK.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.3197 of 2005 ---------------------------------------------Dated this the 25[th] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.55/2001 of Additional Sessions Judge, Pathanamthitta. He was charge sheeted by the Judicial First Class Magistrate Court, Thiruvalla u/s.55(a) of the Abkari Act. The charge against the accused is that on 9.9.1996 at 7.45 p.m he was found in possession of 10 litres of wash in his house bearing No.167 of Ward No.VI of Peringara Panchayat by the Preventive Officer, Thiruvalla Excise Range. The revision petitioner was arrested and enlarged on bail. The contraband articles were seized, reaching at the Excise Office, he entrusted the matter to the Excise Inspector, Thiruvalla. After completing investigation, he laid final charge in the Judicial First Class Crl.R.P. No.3197/2015 2 Magistrate, Thiruvalla. 2. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P5. Material objects were marked as MO1 and MO2 in the trial Court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1. The learned Magistrate convicted the accused u/s.55(g) of the Abkari Act and sentenced thereunder. Against that, he preferred Crl.Appeal No.55/2001 before Additional Sessions Judge, Pathanamthitta, where the sentence was modified. Being aggrieved by that, he preferred this appeal. 3. 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 Crl.R.P. No.3197/2015 3 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 interpreting with the above power. 4. I have heard both sides and perused the oral and documentary evidence. The facts and circumstance highlighted by both parties appear that both Courts had considered the evidence properly. There is no misreading of evidence and appreciated the evidence properly. Both Courts have the impression that prosecution evidence is well established to prove the case. All the facts in favour of the accused were rightly analysed. 5. The general rule is that a house can be searched Crl.R.P. No.3197/2015 4 only after obtaining a warrant, which must be obtained from a Magistrate. But S.31 says whenever the Commissioner of Excise or Abkari Officer not below the rank notified by the Government or any police officer not below the rank of Sub Inspector has reason to believe that any delay in obtaining a search warrant may cause concealment or destruction of evidence or facility for the escape of the offender, then the officer may search without warrant after recording the reason. Officers of and above the rank of Preventive Officers are competent to conduct searches without warrant under the Act. Kerala Abkari Manual Volume II, Chapter XXV deals with crime, detection, enquiry, trial and prosecution, Rules 11,14, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32 and 35 deal with mode of conducting searches. In urgent situation any Abkari Officer notified by the Government may not be possible to obtain warrant from a Magistrate or Excise Commissioner, in this context, Rule 14 says he may, after recording the reason Crl.R.P. No.3197/2015 5 and ground for belief, enter and search any place. 6. According to S.36 of the Act, all searches under the provision of the Act shall be made in accordance with the provisions of the Code of Criminal Procedure 1973, provided that person called upon to attend and witness searches shall include two persons neither of whom is an Abkari Officer, Police or Village Officer. It is imperative that the provisions of Code of Criminal Procedure(hereinafter referred to Code) are strictly and carefully observed while conducting searches. According to the Code searches shall be made in the presence of two respectable witnesses of the locality. Abkari Manual says if the Abkari Officer entertains an apprehension that the witness of the locality would be won over and hostile to the prosecution, he may take witness from elsewhere. Such witnesses taken from other places must be independent and respectable and their presence should be secured during trial and adduce evidence about the grounds of his apprehension. Crl.R.P. No.3197/2015 6 The articles received in the course of house search should be entered in the search list prepared on the spot, it must be carefully packed, labelled and sealed in the presence of the search witness and signed in the label affixed to each item. 7. PW4 Preventive Officer, Excise Office, Thiruvalla seized wash from the house of the revision petitioner. His evidence shows that on 9.9.1996 he got information that the revision petitioner was keeping koda for making arrack, he prepared a search memorandum and send it to the Court, thereafter searched the house. He seized koda the liquid and confirmed as koda. He took 750ml as sample and sealed it. For that, he prepared Ext.P1 mahazar. Ext.P5 is the copy of the search memorandum. Ext.P4 is search list. Ext.P4(a) is the copy of the search list. MO1 and MO2 were seized by PW4. During cross examination, he stated that all formalities of seizure were properly complied by him. PW1 supported PW4, who identified MO1 and MO2. PW2 independent witness Crl.R.P. No.3197/2015 7 admitted his signature in Ext.P1, but he did not know the content in it. He signed in Ext.P1 at the courtyard of the revision petitioner. 8. PW3 deposed that on 9.9.1996 the Preventive Officer produced seized articles before him in the Excise Office, Thiruvalla. He registered a crime and seized articles were produced before Court on the next day. The seized articles were sent over to the Chemical Examiner's lab through the Court and obtained Ext.P2 chemical report. Ext.P3 is the crime and occurrence report. No reasons were highlighted to reject the above evidence. 9. The learned counsel for the revision petitioner submitted that the revision petitioner is now aged 68 years. The quantity seized from his possession is very small and after this case, he is not involved in any other case. Considering the nature of offence and the circumstances under which it was committed, I am of the opinion that he is entitled to get a Crl.R.P. No.3197/2015 8 leniency. Since the occurrence was before amendment, the sentence u/s.55(g) is imprisonment upto two years and fine, which shall not be less than 25,000/-. (Relied ₹ **Sasikumar** v. **State of Kerala** [2012 (4) KLT 867]. Considering the quantity and nature of offence, the revision petitioner is sentenced as follows: The revision petitioner is sentenced to imprisonment for one month and fine of 25,000-, in default of payment of fine,₹ imprisonment for six months. Crl.R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3197/2015 9 ## **Search and seizure** 6. 8. Their signature should be obtained at the foot of the search list and they should be called upon to prove their signature as witnesses. If the witnesses are not literate, the officer shall obtain their thumb impression only in the search list. There is no objection in taking the signature of the owner of the house or the person in charge of the house in the search list, provided the copy of the search list should be given to the owner of the house. Crl.R.P. No.3197/2015 10 Crl.R.P. No.3197/2015 11