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2012 Supreme(Online)(KER) 8316
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
DIVAKARAN – Appellant
Versus
EXCISE INSPECTOR – Respondent
CRIMINAL REVISION PETITION 2950/2003
Possession of illicit liquor requires solid evidence for conviction; however, circumstances can warrant leniency in sentencing.
Headnote:
Illicit - Excise Offences - Abkari Act - Sections 55(a) - Summary of legal provisions under the Abkari Act provides a framework for the prosecution of illicit liquor possession; the court upheld this framework, emphasizing the evidential adequacy for conviction, while adjusting the severity of the penalty.
Fact of the Case:
The revision petitioner was charged under Section 55(a) of the Abkari Act for possession of illicit arrack on a public road. He was convicted and sentenced by the trial court, and his appeal was dismissed by the Sessions Judge.
Finding of the Court:
The court found the prosecution's evidence credible, affirming the conviction due to lack of discrediting material against key witnesses and the corroboration of reports confirming the illicit nature of the liquid.
Issues: The main issue was whether the conviction was valid based on the evidence presented and if the sentence imposed was appropriate.
Ratio Decidendi: The court held that the evidence established possession of illicit arrack was adequate for conviction under the Abkari Act, yet considered mitigating circumstances for leniency in sentencing.
Final Decision: Revision Petition allowed in part, conviction upheld, sentence reduced to three months with minimum fine.
O R D E R
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PW6, the Excise Inspector, Thamarassery, prosecuted the revision petitioner before the 1st Additional Assistant Sessions Judge, Kozhikode, in S.C.No.13/2001, accusing offence under Section 55 (a) of the Abkari Act with an allegation that at 6.p.m., on 17.4.1998, along Chamal - Ambedkar public road the revision petitioner was found carrying three litres of illicit arrack in a jerry can which was marked as MO1.
2. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 6 were examined. Exts.P1 to P7 were marked. During the course of evidence, Exts.D1 and D2 were marked. MO1 was also marked on the side of the prosecution. After closing the evidence of the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. The revision petitioner denied the incriminating evidence and took a plea of total innocence. Though he was called upon to enter his defence, no defence evidence was let in. The learned Assistant Sessions Judge, on appraisal of the evidence, arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three years and a fine of rupees one lakh with a default sentence of simple imprisonment for six months.
3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.485/2001 before the Sessions Judge, Kozhikode. By judgment dated 14.8.2003, the Sessions Judge, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred.
4. I have heard Adv.Sri.S.R.Sreejith, the learned counsel appearing for the revision petitioner and Smt.M.G.Lisha, the learned Government Pleader. The learned counsel for the revision petitioner took me through the evidence on records.
5. In support of the prosecution case, PW1, a Preventive Officer attached to the Excise Range Office, who detected the crime had given evidence. According to him, at 6 p.m., on 17.4.1998, while he was moving on patrol duty, he found the revision petitioner coming across with MO1 along Chamal Ambedkar road. Seeing PW1 and party, the revision petitioner attempted to turn away. The revision petitioner was intercepted and on examination MO1 was found containing 3 litres of illicit arrack. The nature of the liquid was convinced by smell and taste. Therefore, the revision petitioner was arrested for which Ext.P2 arrest memo was prepared. MO1 with the liquid was seized. 180mls was taken as sample in a bottle. The sample bottle and MO1 were sealed then and there. Labels were affixed. Ext.P1 seizure mahazar was prepared.
6. PW2, an Excise Guard, who was on patrol duty along with PW1, had given evidence corroborating with the evidence adduced by PW1.
7. PWs 3 and 4 are attestors to Ext.P1 seizure mahazar.
Though they would admit their signatures in Ext.P1, they denied of having witnessed the arrest and seizure. According to PW4, he heard that arrack was seized from the revision petitioner. 8. PW5, the Excise Inspector, would depose that the revision petitioner and the material objects were produced before him by PW1 along with Exts.P1 and P2. Consequently, a case as Crime No.7/98 was registered for which Ext.P3 crime and occurrence report was prepared. The revision petitioner was produced before the Magistrate concerned. Material objects were produced before the Magistrate along with Ext.P4 property list. He filed Ext.P5 forwarding note to send the sample for chemical examination and obtained Ext.P7 report of the chemical examiner. He also got Ext.P6 plan prepared through the Village Officer. While so, he was succeeded by PW6 who submitted the charge sheet.
9. Carefully going though the evidence of PWs 1 and 2, who were subjected to searching cross examination, as observed by the courts below, no material was disclosed to disbelieve their
