SELY Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is the convicted accused in C.C. No. 1294/1996 on the file of the Judicial 1st class Magistrate Court - II, Ernakulam and she was convicted for the commission of the offence punishable under S.58 of the Abkari Act. Revision petitioner was tried for the alleged commission of the offences punishable under S.55(a) and 55(i) of the Abkari Act and the learned Magistrate, on scrutiny and evaluation of the evidence led by the prosecution in support of its case, came to the conclusion that the prosecution dismally failed to prove the offences punishable under S.55(a) and 55(i) of the Abkari Act and acquitted her of the charge levelled against on these two counts. He convicted her for the offence under S.58 of the Abkari Act. Consequent on conviction the revision petitioner was sentenced to pay a fine of Rs. 2000 with a default clause to undergo simple imprisonment for 20 days.

(2.) Assailing the conviction of her for the offence punishable under S.58 of the Abkari Act, the revision petitioner preferred Crl. A.601/2000 and the learned Sessions Judge, Ernakulam, on reappraisal of the evidence, altered the finding of guilt recorded by the trial Magistrate under S.58 of the Abkari Act to one under S.55(a) of the Abkari Act. While altering the finding the Sessions Judge maintained the sentence of fine imposed upon the revision petitioner by the Trial Court and directed the Trial Court to execute the sentence.

(3.) Counsel for the revision petitioner is well founded in his submission that the conviction of the revision petitioner under S.55(a) of the Abkari Act by the learned Sessions Judge is not sustainable on the ground that no appeal has been preferred by the State against the order of acquittal of the revision petitioner for the offence under S.55(a) and 55(i) of the Abkari Act by the Trial Court and the acquittal of revision petitioner has attained finality. Counsel also rightly submitted that appeal has been preferred against the order of conviction of the appellant therein (revision petitioner) for the offences under S.58 of the Abkari Act and the powers conferred on an appellate court under S.386(b)(iii) is clearly confined to cases of appeal preferred against order of conviction and sentence and the powers conferred by this clause could not be exercised for the purpose of reversing an order of acquittal passed in favour of revision petitioner. The decision rendered by the Supreme Court in State of A.P. v. Thadi Narayana ( AIR 1962 SC 240 ) is cited before me by the learned counsel to canvass for the position that the learned Sessions Judge against the clear mandate of S.386(b)(ii) and without jurisdiction altered the order of acquittal passed by the trial Magistrate under S.55(a) of the Abkari Act to one of conviction under S.55(a) of the Act holding that such a power is conferred on him by S.386(b)(ii).