Sivam v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 2538 of 2003 (C)** **--------------------------------AGAINST THE JUDGMENT IN CRL APPEAL NO.421/1999 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE DATED 03-08-2002** **AGAINST THE JUDGMENT IN CC 634/1996 of JUDICIAL MAGISTRATE OF FIRST CLASS,KUNNAMANGALAM DATED 17-07-1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------SIVAM, S/O. CHEKKUTTY, KURIYOTHI THAZHAM HOUSE, VENGERI AMSOM, VANDOOR DESOM,** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-----------------------------------STATE OF KERALA, REP PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.2538 of 2003 ---------------------------------------------Dated this the 16[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.421/1999 of Additional District & Sessions Judge, Fast Track, Adhoc-II, Kohikode. The revision was sheeted in petitioner charge C.C.No.634/1996 before Judicial Magistrate of First Class, Kunnamangalam for having committed an offence punishable u/s.55(a) of the Abkari Act. The learned Magistrate convicted the accused u/s.55(a) of the Abkari Act and sentenced to simple imprisonment for six months and fine of ₹25,000/-, in default simple imprisonment for two months. Against that, the accused preferred Crl.Appeal No.421/1999 Crl.R.P. No.2538/2003 2 before Additional Sessions Judge, Fast Track, Adhoc-II, Kozhikode, where the the conviction u/s.55(a) was set aside and the accused was convicted u/s.58 of the Abkari Act and sentenced to undergo simple imprisonment for three months and fine of 15,000/-, in default simple₹ imprisonment for one month. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that won 21.8.1996 at 5 p.m. while the Circle Inspector of Excise Enforcement and Anti Narcotic Special Squad, Kozhikode was conducting patrol duty and reaching near the canal bridge, the accused was found near the house of one N.P. Koya carrying a cannas, on seeing the Excise Party, he became perplexed and tried to escape from there. The Excise party intercepted him and inspected the cannas, in which 10 litres of arrack was detected. He was arrested Crl.R.P. No.2538/2003 3 and the contraband articles were seized. The accused was subsequently entrusted to the Excise Range Office, Kozhikode, where they registered a crime. After completing investigation, the Excise Inspector, Kozhkode laid final report before Judicial First Class Magistrate, Kunnamangalam. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P5. MO1 was admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When the case came up for hearing, the learned counsel for the revision petitioner submitted that the revision petitioner died. Accordingly, as per the order dated 1.6.2016, the Excise Inspector, Excise Range Office, Kozhikode has filed a report along with the Death Certificate of the revision petitioner, in which it is stated Crl.R.P. No.2538/2003 4 that the revision petitioner died on 15.10.2004, which is marked as Ext.C1. 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives Crl.R.P. No.2538/2003 5 may, within thirty days of the death of the appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole Crl.R.P. No.2538/2003 6 question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. 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 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. Crl.R.P. No.2538/2003 7 7. While adverting to the above argument, I have examined the evidence of PW1, which shows that on 21.8.1996 he was working as Circle Inspector of Kozhikode Excise Enforcement and Anti Narcotic Special Squad, he conducted patrol duty with his party, the accused was found near the house of one N.P. Koya in Vengery Village with MO1. Upon suspicion, he inspected the can and detected arrack in it. He took 180ml as sample and sealed at the place of occurrence. He also affixed label and put his signature and the accused also affixed his signature on it. The arrack was seized after describing in Ext.P1 mahazar. Reaching at the Excise Office, he entrusted the seized articles to the Excise Range Inspector, Kozhikode and registered a crime. Ext.P2 is the crime and occurrence report. PW2 who is the Preventive Officer, supported the evidence of PW1. PW3 and PW4 are the independent Crl.R.P. No.2538/2003 8 witnesses, admitted their signature in Ext.P1. PW3 stated that he signed in Ext.P1 mahazar at the time of arrest of the accused. Even though these witnesses were cross examined by the defence counsel, nothing has been brought out to discredit their evidence. Ext.P5 is the chemical analysis report, in which it is stated that the sample contained 43.44% volume of ethyl alcohol. 8. Analysing the oral and documentary evidence, it is found that the Court below rightly convicted the accused and no reasons are highlighted by the defence counsel to discard the evidence of the occurrence witnesses. The appellate Court set aside the conviction u/s.55(a) of the Abkari Act and convicted u/s.58 of the Abkari Act. The finding of the appellate Court is correct and I do not find any illegality or irregularity in the finding. No circumstances are brought out to set out the Crl.R.P. No.2538/2003 9 finding of the appellate Court. Therefore, there is no merit in this revision and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd