Fathima vs State of Kerala

Honourable Mr. Justice. P.S. Gopinathan

The revision petitioner and her husband were prosecuted by the Excise Inspector, Pazhayannur Range, who was examined as PW 1, before the Judicial Magistrate of First Class, Wadakkancherry, in C.C. No. 186/1997, alleging offence u/s 55(g) of the Abkari Act with a plea that, on 5.2.1997, at 1. p.m., two Preventive Officers, who were examined as PWs 2 and 3, searched the house of the revision petitioner, who was residing along with her husband, bearing door No. XI/300 of Pazhayannur Panchayat and detected out 65 litres of wash kept in two jerry cans, which were marked as MO1 series, prepared for the illicit distillation of arrack. The revision petitioner and her husband pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts. P1 to P3 and MO1 were marked. After closing the evidence for the prosecution, the accused were questioned u/s 313 of the Code of Criminal Procedure. The accused advanced a plea of total denial. No defence evidence was let in. The learned Magistrate, on appraisal of the evidence, arrived at a finding of guilty as against the petitioner. Consequently, she was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 25,000/- with a default sentence of rigorous imprisonment for three months for offence u/s 55(g) of the Abkari Act. Since the 2nd accused was not present at the time when the contraband was seized, he was found not guilty and acquitted u/s 255(1) of the Code of Criminal Procedure. Assailing the above conviction and sentence, the revision petitioner preferred Crl. A. No. 123/1999 before the Sessions Judge, Thrissur. The Additional Sessions Judge (Adhoc-1), to whom the appeal was subsequently made over, by judgment dated 20.4.2002 concurred with the trail court. Consequently, the appeal was dismissed. Assailing the legality, correctness and property of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

I have heard Adv. Sri. V.C. Sarath, the learned Counsel appearing for the revision petitioner and Smt. Lowsy, the learned Government Pleader. Perused the judgments impugned.

The fact that the revision petitioner was residing in house bearing door No. XI/300 of Pazhayannur panchayat is not disputed. The consistent evidence of PWs 2 and 3 that 65 litres of wash was detected from the main room of the house during a search conducted at 1. p.m., on 5.2.1997, is also not disputed. Their evidence is corroborated by Ext. P3 search list, wherein the revision petitioner, who was present in the house, is also an attestor. The evidence of PWs 2 and 3 would show that sample was taken from the wash seized and it was sent for analysis. Ext. P4 report of the chemical examiner would show that the sample contained 5.3% of ethyl alcohol by volume. So, regarding the nature of the liquid also there is convincing evidence. Therefore, the courts below were right in arriving at a conclusion regarding the guilty of the revision petitioner. Though the learned Counsel for the revision petitioner would argue that the revision petitioner was not aware of the presence of the contraband inside the house, she has no such case before the trial court when questioned u/s 313 of the Code of Criminal Procedure. Neither any such case was advanced during trial. Therefore, I find that the conviction under challenge is based upon cogent evidence.

It is submitted by the learned Counsel for the revision petitioner that she was aged 28 years as on the date of the occurrence and on gender consideration she is entitled to leniency in sentence. Having due regard to the nature of the offence, I am not inclined to have any leniency in sentence. However, taking note that there is no bad antecedent reported, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of simple imprisonment for six months along with the fine imposed by the courts below would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to simple imprisonment for six months. The fine imposed by the trial court is sustained with the default sentence. The trial court shall see the execution of sentence and report compliance. Under trial imprisonment, if any, shall be set off.