The court confirmed the conviction under S. 55(a) of the Abkari Act based on the evidence presented and the presumption under S. 64 of the Act. The court also clarified that the alteration of the sentence by the appellate court did not amount to enhancement.

Accused in C.C. 161/79 on the file of the Judicial First Class Magistrate's Court, Tirur is the petitioner in this revision petition. She was charged with offence punishable under S. 55(a) of the Abkari Act. The learned Magistrate after trial found her guilty of the said offence and convicted her thereunder. Thereupon she was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs. 1000/-. In default of payment of fine she was directed to undergo simple imprisonment for three months. The said conviction and sentence were challenged in Crl. Appeal No. 46/80 before the Sessions Court, Menjeri. The learned Sessions Judge by judgment dt. 15-3-1982 confirmed the conviction, but altered the sentence to one of fine. The accused was directed to pay a fine of Rs. 2500/- and in default of payment of fine to suffer simple imprisonment for a period of three months. Hence this revision petition.

2. The learned counsel appearing for the revision petitioner raised two points before me. They are:

(1) The accused cannot be convicted for offence under S. 55(a). Even if the entire prosecution case is taken as proved the offence committed by the petitioner will only be one coming under S. 58 of the Abkari Act.

(2) The Appellate Court by imposing a fine of Rs. 2500/- has enhanced the sentence which is prohibited by S. 386 of the Cr.P.C. and hence this Court has to interfere with the same.

I shall proceed to deal with these points one by one.

Point No. 1 :- The prosecution case in a nutshell is as follows :- At about 4 p.m. on 19-12-1978 the accused was found in possession of about 5 litres of illicit arrack in one cannas by the side of the road situated in front of Uniyal Mosque in Niramaruthur amsom. She was intercepted by the Excise Circle Inspector and party. The arrack was seized as per Ext. P1 mahazar attested to by P.W. 3. P.Ws. 1 and 2 are officials of the Excise Department. They swear to the fact that the accused was found by the side of the road carrying the cannas. The scene mahazar Ext. P1 goes to prove this fact. The independent witness examined to prove Ext. P1 has turned hostile. According to him he had not seen the accused carrying the cannas or the Excise Officials seizing the same. Anyhow this witness admits his signature in Ext. P1 mahazar. Thus the denial stated by P.W. 3 can only be taken as a false one. The Court below have rightly held so.

3. When a person is charged with an offence punishable under S. 55, as per the provision contained in S. 64 the Court has to presume that the accused person has committed the offence charged against him until the contrary is proved. In other words, the accused has to disprove the fact that he has not committed an offence punishable under S. 55 of the Act. No such evidence is let in by the accused in this case. Relying on the evidence of P.Ws. 1 to 3 and on account of the presumption under S. 64 of the Abkari Act, the Court has only to find that the accused has committed the offence punishable under S. 55 of the Act. Thus the conviction entered by the Courts below has only to be confirmed and I do so. Point No. 1 is thus found against the revision petitioner.

Point No. 2 :- The relevant provision of the Cr.P.C. dealing with this point is sub-cl. (iii) of cl. (b) of S. 386, it reads as follows :

"After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under S. 377 or S. 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -

(b) in an appeal from conviction -

iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

4. The Appellate Court after confirming the conviction can alter the nature of the sentence, the extent of the sentence or nature and extent of the sentence so as