Divakaran vs The Excise Inspector, Thamarassery

P.S. Gopinathan, J.—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 u/s 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. 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 u/s 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.

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.

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.

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.

PW2, an Excise Guard, who was on patrol duty along with PW1, had given evidence corroborating with the evidence adduced by PW1.

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.

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.

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 evidence regarding the arrest of the revision petitioner and the seizure of the contraband. The nature of

the liquid was tested by smell and taste by PWs 1 and 2. According to PWs 1 and 2, the liquid contained in MO1 was nothing but illicit arrack.

Their evidence on that aspect is corroborated by Ext. P7 report, wherein it is certified that the sample contained 14.7% of ethyl alcohol by volume.

Though PWs 3 and 4 denied of having witnessed the arrest and seizure of the contraband, since they had admitted their signature in Ext. P1, there

is no reason to disbelieve the prosecution case. There is nothing brought on record to show that there was any unnecessary delay on the side of the

prosecution in producing the material objects. The material objects were produced before court on 20.4.1998. 19.4.1998 was a holiday. There is

nothing on record to show that there was any attempt to tamper with the material objects or that there was any mistaken identity regarding the

material objects seized. Therefore, I find that the conviction under challenge is based upon cogent evidence and requires no interference.

Having due regard to the fact that only three litres of illicit arrack was involved and that no spurious substance was detected and that the revision

petitioner was a coolie, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of simple imprisonment for

three months with the minimum fine imposed by the trial court would meet the ends of justice. In the result, the Revision Petition is allowed in part.

While confirming the conviction, the sentence is reduced to simple imprisonment for three months with the minimum fine as imposed by the courts

below with default sentence. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and

report compliance.