Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE13H DAY OF FEBRUARY201424TH MAGHA, 1935 Crl.Rev.Pet.No. 1979 of 2003 ( ) --------------------------------- CRL.A. NO.601/1999 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE. CC. NO.747/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY. ....... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- ASOKAN, S/O.VELAPPAN, KADAVIL HOUSE, VADANAPPALLY, THRITHALLUR, THRISSUR DISTRICT. BY ADVS.SRI.R.BINDU (SASTHAMANGALAM), SRI.PRASANTH M.P. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.R. GITHESH. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON1302-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.UBAID, J.
~~~~~~~~~~ Crl.R.P No.1979 of 2003 ~~~~~~~~~~~ Dated this the 13th February, 2014 ORDER
The revision petitioner challenges the conviction and sentence imposed under Section 55(a) of the Kerala Abkari Act. He was found guilty by the learned Judicial First Class Magistrate-II, Thamarassery as per judgment dated 29.10.1999 in C.C. No.747/1997. On conviction, he was sentenced to undergo simple imprisonment for six months and also to pay a fine of 25,000/-. The revision petitioner could not succeed in the appellate court, where the conviction and sentence were confirmed. Crl.A.601/1999 brought by the revision petitioner before the appellate court was dismissed by the learned Additional District and Sessions Judge (Adhoc II), Kozhikode on 7.12.2002. Now he is before this Court in revision, challenging the findings of the courts below.
2. The crime was registered on the basis of a search made by the Preventive Officer of the Thamarassery Excise Range in the house belonging to one Krishnan Nair Crl.R.P No.1979 of 2003 2 at Koodathai. In the said search, a huge quantity of 189 bottles of Indian made foreign liquor was seized by the Excise Preventive Officer. Though the said building belongs to one Krishnan Nair, the revision petitioner herein was found there as the person in possession in his capacity as tenant, and so crime was registered against the revision petitioner by the Excise Officials. After formal investigation, the Excise Inspector submitted final report in the trial court and the case proceeded for trial. The prosecution examined five witnesses in the trial court including the Preventive Officer, who detected the evidence and marked Exts.P1 to P5. The material objects seized from the scene of offence were also marked during trial. Of course, the two seizure witnesses cited by the prosecution turned hostile during trial. But, the prosecution relied on the evidence of the Detecting Officer examined as PW1. The prosecution also relied on Ext.P1 seizure mahazar and Ext.P2 search list, which contains the signature of the accused as the person in possession of the building where search was conducted. Crl.R.P No.1979 of 2003 3 3. On an appreciation of the evidence, the trial court found in favour of the prosecution that the revision petitioner was found unauthorizedly in possession of 189 bottles of Indian made foreign liquor in his rented house on 24.2.1997.
4. The revision petitioner now challenges the conviction and sentence on the ground that there is absolutely no material to connect him with the building searched by the Excise Officials and that there is absolutely nothing to show that the huge quantity of 189 bottles of Indian made foreign liquor was seized from his possession.
5. On a perusal of the case records including the important documents and also the evidence of the Detecting Officer, this Court does not find any scope for interference in the findings of the courts below. The Detecting Officer examined as PW1 has given definite evidence proving the seizure of 189 bottles of Indian made foreign liquor from the possession of the revision petitioner. Of course, it is true that the building belongs to one Krishnan Nair but, there is definite evidence proving that at the time of the alleged Crl.R.P No.1979 of 2003 4 seizure, the revision petitioner was found in the said house as the person in possession. It is true that there is no document to prove that the said building was taken on rent by him as a tenant. It does not a matter in what capacity or under what document he got possession over the building. In a prosecution like this, the short question to be looked into is whether the accused was found in actual possession of the building; be it as a tenant or as the owner, or as a trespasser. The effective and actual presence of the revision petitioner in the searched premises stands well proved by the evidence of PW1, and the revision petitioner has no satisfactory explanation for his presence there, if not as the person in possession. He has also no explanation for his signature in Ext.P2 search list prepared by the Detecting Officer at the time of search. Thus, on an appreciation of the materials, this Court finds that the offence punishable under Section 55 (a) of the Kerala Abkari Act, as it then stood, stands well proved against the revision petitioner, and so there is no scope for interference in the findings of guilty and conviction entered by the courts below. Crl.R.P No.1979 of 2003 5 6. Now, the question is whether there is any scope for interference in the sentence imposed by the trial court and confirmed in appeal by the appellate court. As on the date of alleged detection, the sentence prescribed for the offence was simple imprisonment which may extent to two years, and fine which shall not be less than 25,000/-. In this case, the trial court has imposed minimum sentence of fine and imposed simple imprisonment for six months. Of course, it is true that the detection was made in February, 1997, the sentence was imposed in October, 1999 and now we are in 2014. Considering the long lapse of years, this Court feels that some leniency can be shown in the matter of sentence. But, if much leniency to reduce the sentence to the minimum possible is shown, it would definitely be inappropriate when the total quantity of liquor is considered. As regards the fine sentence, there is no scope for interference because the trial court has imposed only the minimum sentence. In the particular facts and circumstances, this Court feels that the jail sentence Crl.R.P No.1979 of 2003 6 imposed by the trial court can be reduced to simple imprisonment for three months, and subject to this modification in sentence, this revision can be dismissed. In the result, this revision petition is dismissed, confirming the conviction against the revision petitioner under Section 55 (a) of the Kerala Abkari Act, however, subject to the modification in sentence, that the jail sentence imposed by the courts below will stand reduced to simple imprisonment for three months. The fine sentence imposed by the courts below, with default sentence thereon, is maintained. Sd/- P.UBAID JUDGE ma /True copy/ Crl.R.P No.1979 of 2003 7 Crl.R.P No.1979 of 2003 8