Karthika vs State of Kerala

S. Siri Jagan, J.—The petitioner and her husband, Sri. Gopinathan were prosecuted for an offence u/s 55(g) of the Abkari Act in Calendar Case No. 90/1997 of the Judicial First Class Magistrate Court-II, Chengannur. The prosecution case was that, the accused stored about 90 litres of wash in their house No. M.P. IV/254 of Kottamperoormuri, Mannar Village, which was detected by Excise Preventive Officer and party on 23.11.1996 at about 7.15 p.m., thereby committing the offence as alleged. The Magistrate convicted both the accused and sentenced both to undergo simple imprisonment for 6 months each and to pay a fine of Rs. 25,000/- (Rupees Twenty five thousand only) each with a default sentence of 2 months each. The petitioner''s husband did not file any Appeal and suffered the punishment. The petitioner filed Crl. Appeal No. 38/2000 before the Additional Sessions Judge-I, Mavalikkara, who dismissed the same confirming the conviction as well as the punishment. The judgments of the Courts below are under challenge in this Crl. Revision Petition. The contention of the petitioner is that, there are serious infirmities in the prosecution case. He submits that, there was delay in producing the contraband before the Court, which strikes at the root of the prosecution case. It is further submitted that, the wash was not seized from the petitioner''s house but from somebody else''s property. Lastly, the counsel for the petitioner would contend that petitioner was residing in the house only as the wife of Gopinathan and was not in any way involved with the crime alleged and her husband having undergone the punishment for the offence committed by him the petitioner is not liable to be either convicted or punished.

The learned Public Prosecutor would contend that none of these grounds, except the ground that the wash was recovered from the property of one Kuttan Pillai, is evident from the line of cross-examination of the witnesses examined by the prosecution. It is submitted that, both the petitioner as well as her husband were living in the same house, from where the wash was seized and therefore both of them are equally guilty for the offence charged. According to the learned Public Prosecutor, there is no inordinate delay in producing the seized materials before the Court.

I have considered the contention in detail. On going through the cross-examination of the prosecution witnesses except the suggestion that, the wash was seized from the property of one Kuttan Pillai, none of the other defences are evident. In fact the accused had no dispute regarding the articles seized and the articles produced in Court. There is no suggestion whatsoever to the witnesses that the articles seized were not the articles produced before the Court and that the chemical examiner''s report did not relate to the articles seized. There was no allegation regarding any prejudice caused to the petitioner on account of any act or omission of the prosecution. In fact, in the Crl. Revision Petition also no such contention has been taken as a ground. I am not inclined to entertain such a contention at this late stage. Even otherwise I do not find any infirmity in the prosecution case. The counsel for the petitioner would take a contention that since the independent Mahazar witnesses have turned hostile, there was no reliable evidence to convict the petitioner. But on a reading of the evidence of the prosecution witnesses, I find that they withstood the cross-examination admirably and no manner of contradictions and other infirmities could be brought out in their evidence in cross-examination. The very fact that the petitioner and her husband were residing in the same house, from the kitchen of which the contraband was seized, itself shows that both the petitioner and her husband were jointly involved in the offence. Therefore, I am not inclined to interfere with the conviction entered by the Courts below in so far as there is no perversity of appreciation of evidence by the Courts below. But taking into the facts and circumstances of the case, I am inclined to reduce the punishment of imprisonment. Accordingly, I reduce the punishment of imprisonment to one month''s simple imprisonment, but the punishment of fine is confirmed and the default sentence is also confirmed. The Criminal Revision Petition is disposed of as above.