ORDER

The accused No.2 who was found guilty of the offence punishable under Section 55(a) of the Abkari Act came up in revision through the legal heirs after his death. The sentence awarded included a fine of Rs.2,00,000/-. Hence, as against the order of fine the offence is not abated, though the substantive sentence for four years will stand abated on the death of the revision petitioner.

2. Heard the learned counsel for petitioners and the learned Public Prosecutor.

3. What is alleged to have been seized comes to

13,475 litres of illicit spirit transported in a lorry. Both the courts below found that accused No.2 is guilty of the said offence and convicted thereunder and sentenced to undergo rigorous imprisonment for four years and a fine amount of Rs.2,00,000/- with default sentence. It is against that judgment of conviction and the order of sentence concurred by the first appellate court, the legal heirs of accused No.2 came up in revision.

4. The main challenge against the concurrent judgment of conviction is that there is non disclosure by PW7, the investigating officer, regarding the place wherein the alleged illicit spirit was kept after its seizure till the date of forwarding the same under a forwarding note and it was not properly understood or considered either by the trial court or by the first appellate court. Strange enough, no such defence was taken up in the trial court or in the first appellate court and no question was put up in that behalf to PW7, the investigating officer, while he was in the box, by the accused. Yet another ground was also raised pertaining to the date of FIR registered. The alleged incident had happened on 18.05.2004 and the FIR, in fact, was registered on the very same day. But, there is an overwriting by correcting the same as 19.05.2004.

It was also not brought to the notice of the officer who had registered the FIR. There may be some overwriting. Unless it was taken up before the officer who had registered the FIR, no defence can be set up without affording an opportunity to explain the infirmities, if any, occasioned. Necessarily, it will not vitiate the concurrent judgment of conviction rendered by both the trial court and the first appellate court. But, having regard to the fact that the accused No.2 passed away during the pendency, it is a fit case wherein the fine amount can be reduced to Rs.1,00,000/-. Hence, the fine amount will stand modified to Rs.1,00,000/- taking into account the death of accused No.2 during the pendency and the liability which can be fastened against the legal heirs, the widow and children of the deceased. Hence, the sentence awarded will stand modified to a fine of Rs.1,00,000/- (Rupees one lakh only) which can be recovered from the assets left out by the deceased.

Having regard to the submission made by the learned counsel for the petitioners, at the fag end of the argument, three months time is granted to the petitioners to deposit the fine amount.

The Criminal Revision Petition will stand allowed in part accordingly.

Sd/-

P.SOMARAJAN JUDGE DMR/-

APPENDIX PETITIONER'S ANNEXURE:

ANNEXURE A1 : TRUE COPY OF DEATH CERTIFICATE OF HUSBAND OF 1st REVISION PETITIONER.

// TRUE COPY //

P.A. TO JUDGE