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BHUVANENDRAN v. STATE OF KERALA - Crl Rev Pet No. 2526 of 2006  RD-KL 347 (26 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2526 of 2006()
1. BHUVANENDRAN, S/O. KUNJAN,
1. STATE OF KERALA, REP. BY
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2526 of 2006
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Dated this the 26th day of July, 2006
O R D E RThis revision petition is directed against the concurrent verdict of guilty, conviction and sentence in prosecution under Section 55(a) of the Kerala Abkari Act.
2. The prosecution alleged that when the Excise Party consisting, inter alia, of PWs. 1 and 2 intercepted the petitioner at 5 p.m. on 22.4.1997 near the Christian Church at the public road at Thannimoodu, the petitioner was transporting 5 litres of arrack in MO1 plastic can. The complaint was filed by PW3.
3. Consequent to the plea of not guilty raised by the petitioner, PWs. 1 to 4 were examined and Exts.P1 to P5 were marked by the prosecution. PWs. 1 and 2 are officials in the detecting party. PW3 is the Excise Inspector, before whom the contraband article, the accused and the relevant records were produced by PW1. PW4 is an attester to Ext.P1 seizure mahazar. He turned hostile, but admitted Crl.R.P.No. 2526 of 2006 2 his signature in Ext.P1. Ext.P2 is the occurrence report, Ext.P3 the property list, Ext.P4 the chemical examination report and Ext.P5 the bail bond executed by the accused. The accused took up a defence of total denial. No defence evidence was adduced.
4. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 55(a) of the Abkari Act. Accordingly they proceeded to pass the impugned concurrent judgments.
5. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner first of all contends that reliance should not have been placed on the oral evidence of PWs. 1 and 2. They are interested witnesses. Their evidence is incongruent. Their evidence is not sufficient to establish that MO1 was the can which was allegedly recovered from the possession of the petitioner. At any rate, no offence under Section 55(a) is revealed, argues the learned counsel.
6. I am unable to find any merit in the contentions raised on merits. PWs. 1 and 2 are officials of the Excise department. No contention is raised Crl.R.P.No. 2526 of 2006 3 that PWs. 1 and 2 or any other excise official has any animus against the petitioner to justify an apprehension that they may be speaking falsehood with malicious intent against the petitioner. They are expected to be interested in detecting offences and bringing the offenders to book. That interest cannot relegate them to the category of interested witnesses, whose evidence has to be approached with care, caution and suspicion. The hostility of PW4 cannot also deliver any advantage to the petitioner. The courts in India do often come across the sad spectacle of the so called independent witnesses turning hostile to the prosecution with impunity. Such hostility of independent witnesses is of no avail to the accused. The oral evidence of PWs. 1 and 2 is supported by the contents of the contemporaneous seizure mahazar, to which PW4 is a signatory.
7. The learned counsel then relies on the availability of three caps for MO1, whereas the prosecution witnesses are able to explain the presence of only two caps. The courts below have adverted to this aspect in detail. When seized the can was full and if the third cap was omitted to be noticed no significance can be attributed to the omission of the third cap in the seizure mahazar. Crl.R.P.No. 2526 of 2006 4
8. The learned counsel for the petitioner contends that there is some incongruities in the evidence of PWs. 1 and 2, vis-a-vis the documents available about the precise location of the spot where the detection was made. The court has noted this alleged incongruity. It is shown unmistakably that the detection took place at the public road near the Christian Church. The innocuous incongruities in the description of the spot of detection cannot deliver any advantage to the accused.
9. The learned counsel then advances a contention in law. He contends that at worst the offence would be only one punishable under Section 58 of the Abkari Act. Possession simplicitor of illicit liquor must fall within the sweep of Section 58 and cannot attract Section 55(a) of the Act. A certain amount of overlapping may appear to be there in Section 55 (a) and 58. But all the controversies on this aspect are laid to rest by the decision of the Division Bench in Surendran v. Excise Inspector (2004 (1) KLT 404). Possession simplicitor is punishable under Section 58. Whereas possession incidental to import, export, transport and transit is punishable under Section 55(a) of the Act. In the instant case, the petitioner was found to carry a fairly large quantity of liquor - 5 litres - while he was Crl.R.P.No. 2526 of 2006 5 moving on the road. It must certainly come within the sweep of Section 55 (a). May be in some cases, when the quantity for personal consumption alone is carried by an individual, it may be possible to contend that primarily such possession must be reckoned as possession simplicitor and not possession incidental to transportation notwithstanding the proved movement of the person in possession. In an appropriate case that question can be considered in greater detail. But in any view of the matter, the petitioner is proved to be carrying 5 litres of illicit arrack in MO1 can. By no stretch of imagination can it be contended that the possession by him was possession simplicitor and not of any culpable variety contemplated under Sectin 55(a) of the Act. The challenge on this legal ground must also necessarily fail.
10. Coming to the question of sentence, the appellate court had indulgently modified the sentence imposed and the petitioner now faces only a sentence of S.I. for a period of three months and the minimum mandatory fine of Rs.25,000/- along with a default sentence of S.I. for one month. I am not persuaded to agree that the sentence imposed is improper or perverse to justify interference in revision. Crl.R.P.No. 2526 of 2006 6
11. This revision petition fails and is hence dismissed. (R. BASANT) Judge tm
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