IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 23^RD DAY OF MAY 2023 / 2ND JYAISHTA, 1945 CRL.REV.PET NO. 2318 OF 2003 CRA 50/1999 OF SESSIONS COURT,THALASSERY CC 380/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUTHUPARAMBA REVISION PETITIONER/ APELLANT/ ACCUSED :

MEETHALE RAYAROTH SREEDHARAN, S/O. KANNAN, KOTTAYAM AMSOM, KINNAVAKKAL DESOM, KUTHUPARAMBA, THALASSERY TALUK BY ADVS.

P.P.RAMACHANDRAN SHEJI P.ABRAHAM RESPONDENT/ RESPONDENT/ COMPLAINANT :

CIRCLE INSPECTOR OF EXCISE, KUTHUPARAMBA RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY SRI.C.N. PRABHAKARAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J. --------------------------------

Crl.R.P.No.2318 of 2003 ---------------------------------

Dated this the 23^rd day of May, 2023

ORDER

Revision petitioner is the accused in C.C.No.380/1996 on the files of the Judicial First Class Magistrate's Court, Kuthuparamba. He faced trial along with another accused for the offence under Section 55(a) of the Kerala Abkari Act, 1077.

2. According to the prosecution, the accused had on 29.11.1995 transported 100 litres of illicit arrack in ten plastic cans in an Autorikshaw bearing Registration No.KRC.8672, driven by the first accused through a public road. Even though the petitioner and the 2^nd accused had pleaded not guilty, the learned Magistrate by judgment dated 20.01.1999 found both the accused guilty and sentenced them to undergo rigorous imprisonment for 9 months and to pay a fine of Rs.25,000/-.

3. Aggrieved by the conviction and sentence, the first accused who is the revision petitioner, alone, preferred an appeal before the Sessions Court, Thalassery as Crl.A.No.50 of 1999. By judgment dated 18.02.2003, the appellate court, after confirming conviction, modified the sentence of imprisonment and reduced it to three months but sustained the sentence of fine.

4. This revision petition has been preferred challenging the said conviction and sentence.

5. It is appropriate to mention that even though this Court had suspended the sentence of imprisonment on condition of executing a bond for Rs.25,000/- with two solvent sureties, the revision petitioner failed to comply with the condition to pay the fine. It is informed by the learned Public Prosecutor, based upon instructions dated 11.08.2010 from the Superintendent of Central Prison, Kannur, that revision petitioner had undergone imprisonment from 08.02.2004 till 06.11.2004 and that he had completed the period of sentence imposed upon him by the impugned judgment.

6. Despite the above, the learned counsel for the petitioner vehemently contended that the conviction and sentence imposed upon the revision petitioner is without any basis and that the judgments are perverse and are liable to be interfered with.

7. Sri.C.N.Prabhakaran, the learned Public Prosecutor submitted that the judgments warrant no interference as the learned Magistrate as well as the learned Sessions Judge had appreciated the evidence adduced and came to the conclusion that the accused was proved to have committed the offence.

8. Prosecution examined PW1 to PW3 and had marked Ext.P1 to Ext.P8 apart from MO1 series. The learned Magistrate came to the conclusion that the accused had transported 100 litres of illicit arrack in the autorikshaw belonging to the 1^st accused on 29.11.1995. Two witnesses examined as PW2 and PW3 were the independent witnesses. Though PW2 turned hostile, he had admitted the signature in the mahazar. By the evidence of PW1, who is the Circle Inspector of Excise and that of PW3, the independent witness, the transportation of the alleged contraband in the autorikshaw belonging to the petitioner was clearly proved.

9. However, there is an omission in the investigation conducted and that is fatal to the prosecution case. Even though the forwarding note marked as Ext.P7 c