Vasu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938** ## **CRL.REV.PET.NO. 1936 OF 2006 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.424/2004 OF ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE DATED 13.02.2006** **AGAINST THE JUDGMENT IN SC NO. 462/2001 OF ASSISTANT SESSIONS JUDGE, KOYILANDY DATED 14.06.2004** **------------------------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **--------------------------------------------------------------------** **VASU, S/O CHANDU, MANANCHERRY HOUSE, ELATHUR AMSOM, KARANNUR DESOM, KOZHIKODE TALUK.** **BY ADV. SRI. P.V. KUNHIKRISHNAN** **RESPONDENT(S)/COMPLAINANT & STATE:: -----------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **----------------------Crl. R.P. No.1936 of 2006 ---------------------------------Dated this the 28[th] Day of June, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.424 of 2004 of the Additional Sessions Judge, Fast Track (Adhoc-II) Kozhikode. The accused was charge sheeted in S.C. No.462 of 2001 by the Assistant Sessions Judge, Koyilandy for the offence under Secs.55(a) and 8(1) of the Abkari Act and convicted under Sec.55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for three years and fine of Rs.1,00,000/- (Rupees one lakh only), in default, simple imprisonment for two years and acquitted him under Sec.8(1) of the Abkari Act. Against that conviction and sentence, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode, where the learned Additional Sessions Judge modified the sentence. Being aggrieved by that, the accused preferred this Crl. R.P. No.1936 of 2006 2 revision petition. 2. The charge is that on 30.05.1998 at 6.00 p.m., the Excise Preventive Officer and party, Chelannur was conducting patrol duty and they reached in front of the house of Kattarakkal Aboobaker, they found the accused carrying 5 litres of arrack. He was arrested and the contraband articles were seized. Reaching at the Excise Range Office, they registered a crime. After completing investigation, the Excise Inspector, Chelannur laid charge before the court under Secs.55(a) and 8(1) of the Abkari Act. Subsequently, it was committed to Sessions Court, Kozhikode. From there, it was made over to Assistant Sessions Judge, Koyilandy. In pursuance of the trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P7 as documentary evidence. MO1 was 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. When the matter came up for hearing, the Crl. R.P. No.1936 of 2006 3 learned counsel appearing for the revision petitioner submitted that the revision petitioner died on 14.02.2015. Hence, this Court obtained a report from the Excise Inspector, Chelannur Excise Range. He also produced the death certificate of the revision petitioner issued by the Sub Registrar of Birth and Death, Kozhikode Corporation 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.” Crl. R.P. No.1936 of 2006 4 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 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 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 Crl. R.P. No.1936 of 2006 5 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 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 Crl. R.P. No.1936 of 2006 6 note that the possibility of another view on a point is not a ground for interpreting with the above power. 7. The occurrence was deposed by PW1, Preventive Officer, Chelannur Excise Range. His evidence shows that on 30.05.1998 at 6.00 p.m., he was conducting patrol duty with other officials and when they reached at the place of occurrence, they found the accused in possession of 5 litres of arrack in MO1. He was arrested and the contraband articles were seized. Ext.P2 is the seizure mahazar. Ext.P1 is the arrest memo. Reaching at the Excise office, he registered a crime. Ext.P3 is the crime and occurrence report. PW2, the Excise Guard supported the oral evidence of PW1. PW1 and PW2 identified MO1. When MO1 was produced before Court, it was empty. PW1 affixed a label in the seized article, he also obtained the signature in the label affixed in MO1. He took a sample from the place of occurrence and forwarded it to the chemical examiner's lab. Ext.P5 is the forwarding note. The seized articles were produced before the court. Ext.P7 is the Chemical Examination Crl. R.P. No.1936 of 2006 7 Report and Ext.P6 is the Site plan. Even though these witnesses were cross examined by the defence counsel, nothing has been brought out to discredit their evidence. 8. A reading of the oral evidence of PW1 and PW2, it is clear that the he complied with the procedure formalities provided in the Excise Manual and in the Abkari Act. The independent witnesses PW4 and PW5 admitted their signature in Ext.P2 seizure mahazar. But they deposed that they did not see the seizure of MO1 from the possession of the revision petitioner. PW6 conducted investigation and laid charge before the court. He obtained Ext.P7 chemical examination report in which, 22.5% of ethyl alcohol was detected in the sample. Analysing the oral evidence of official witnesses, it is clear that PW1 detected the offence as stated. PW1 and PW2 are official witnesses is not a ground to discard their oral and documentary evidence. The prosecution succeeded in proving the case. 9. According to Sec.8 of the Abkari Act, prohibition of manufacture, import, export, transport, Crl. R.P. No.1936 of 2006 8 transit, possession, storages, sales etc. of arrack is an offence. No person shall manufacture, import, export (without permit transit) possess, store, distribute, bottle or sell arrack in any form. This court in **Gopan @ Gopakumar v. State of Kerala [ 2007 (3) KHC 145]** held that possession of arrack in any form without any authority would attract the offence under Sec.8 of the Abkari Act. Here, the possession of arrack by the accused attract the offence under Sec.8(1) and (2) of the Abkari Act in which trial court acquitted the accused. No appeal was preferred by the State against that acquittal. If that be the position, conviction under Sec.55(a) of the Abkari Act is unsustainable and is set aside. Since the accused is no more and no appeal was filed against the acquittal, it is not possible to convict the accused under Sec.8(1) and (2) Abkari Act. This revision petition is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/01/07/2016* P.A. To Judge