Sasi, s/o BhaskarAn v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 3RD DAY OF JUNE 2016/13TH JYAISHTA, 1938H** **Crl.Rev.Pet.No. 3200 of 2004 (D)** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 290/2000 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA DATED 11-10-2004** **AGAINST THE JUDGMENT IN CC 319/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KAYAMKULAM DATED 08-11-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------SASI, S/O.BHASKARAN, KRISHNA VILASOM, ELIPPAKKULAM MURI, KATTANAM VILLAGE,, MAVELIKKARA.** **BY ADV. SRI.C.RAJENDRAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, MAVELIKKARA(CRIME NO.51/97), THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.3200 of 2004 ---------------------------------------------Dated this the 3[rd] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.290/2000 of Additional Sessions Judge-I, Mavelikkara. He was charge sheeted in C.C.No.319/1997 by the Judicial First Class Magistrate, Kayamkulam for having committed an offence punishable u/s.55(a) of the Abkari Act 1077. The learned Magistrate convicted the accused and sentenced to simple imprisonment for one year and fine of 25,000/- with a₹ default sentence of simple imprisonment for six months. Against that, he preferred the above Crl.Appeal and the Additional Sessions Judge-I, Mavelikkara dismissed the Crl.R.P. No.3200/2004 2 appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 5.3.1997 while Asst. Excise Inspector, Mavelikkara was conducting patrol duty on 5.3.1997 within his jurisdiction, he got information that the accused was keeping illicit arrack in his house at Elippakkulam Muri. They searched the house and detected 5 litres of illicit arrack. The accused was arrested and the contraband articles were seized, reaching at the Exicse Office, he entrusted the matter to the Excise Range Inspector, who registered a crime and occurrence report. After completing investigation, the Excise Range Inspector, Mavelikkara laid a final report in the Judicial First Class Magistrate, Kayamkulam. In pursuance of trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P8 and cannas was Crl.R.P. No.3200/2004 3 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 learned counsel for the revision petitioner submitted that there is delay in registering the case, which was not properly explained by the prosecution and the crime was registered on the next day. There is no independent evidence to prove the alleged seizure. 4. I have heard both sides and perused the oral and documentary evidence. It appears that both courts considered and appreciated the evidence. There is no misreading of evidence. Both courts had the impression that the many things stated by the witnesses are properly established and reached at a conclusion. Crl.R.P. No.3200/2004 4 5. The occurrence was deposed by PW1. His evidence shows that on 5.3.1997, while he was working as Preventive Officer, Excise Range Office, Mavelikkara, he got information that the accused was manufacturing arrack. He prepared Ext.P6 search memo and sent it to the Court and proceeded to the place of occurrence at 9 p.m., thereafter, conducted search in the presence of the independent witness. During search he detected 5 litres of arrack in MO1. Ext.P7 is the search list. The accused was arrested and the contraband articles were seized. He took 375ml as sample and sealed at the place of occurrence. The balance arrack was also sealed. PW5, Asst. Excise Inspector supported the evidence of PW1. PW1 and PW5 identified their signature in Exts.P6 and P7. The independent witnesses PW2 and PW3 did not support the prosecution case. But, PW2 identified his signature in Crl.R.P. No.3200/2004 5 Ext.P1 mahazar. The accused was enlarged on bail and the contraband articles were produced before Court. PW4, the Excise Range Inspector deposed that he received MO1 and registered Ext.P2 crime and occurrence report. Ext.P3 is the thondy list. The sample was sent over to the chemical examiner's lab through Court. Ext.P4 is the chemical examination result. On a perusal of the oral and documentary evidence, it is found that the evidence of PW1, PW4 and PW5 is corroborating the prosecution case. 6. What is seen from the evidence of PW2 and PW3 is that PW2 signed Ext.P1 mahazar. This will show that he was present at the time of preparing Ext.P1. Normally, in every abkari case, the witnesses who were present at the place of seizure attest the mahazar, but they did not support the prosecution case during trial Crl.R.P. No.3200/2004 6 before Court. According to the Excise Manual Vol.II, if the excise officials, who conduct search, have the reasonable apprehension that the independent witnesses will turn hostile at the time of examination before Court, they can obtain independent witnesses from elsewhere after recording the reason. But the reasonable apprehension about hostility has to be assessed by the detecting officer before accompanying them for witnessing the search and seizure. All searches conducted in this case are according to Section 31 and 36 of the Abkari Act. From the evidence of PW1 and PW5, it is found that PW1 is a competent officer u/s.4 of the Abkari Act. In my opinion, the Court below rightly analysed the evidence and convicted the revision petitioner. I do not find any illegality in the conviction. In the result, conviction u/s.55(a) of the Abkari Act Crl.R.P. No.3200/2004 7 is confirmed. Considering the nature of offence and the circumstances under which it was committed, the sentence imposed by the trial court is modified to simple imprisonment for one month and fine of 25,000/-, in₹ default of payment of fine, simple imprisonment for one month (Relied decision in **Sasikumar** v. **State of Kerala** [2012 (4)KLT 867]. Crl.R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd