JOSEOH Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is the accused in S.C. No. 77/2000 on the files of the Additional Assistant Sessions Court, N. Parur. He was charge sheeted for the offence punishable under S. 55(a) of the Abkari Act; but convicted for the offence punishable under S. 58 of the said Act. After trial, the learned Judge found that though the revision petitioner was charge sheeted under S. 55(a), he is found guilty under S. 58 of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1 lakh and in default, to undergo simple imprisonment for one year. Though the revision petitioner had preferred Crl. Appeal No. 731/2002 before the Additional Sessions Judge (Ad Hoc-I), Ernakulam, after re-appreciating the evidence on records, the learned Sessions Judge also found the revision petitioner guilty of the offence, not under S. 58, as found by the trial court, but, under S. 55(a) of the Abkari Act. Thus, the appellate court reversed and converted the conviction from S. 58 to S. 55(a) of the Abkari Act and retained the sentence as such, without any interference. This Revision Petition is filed challenging the divergent findings of conviction and sentence on various grounds. The case of the prosecution is that the accused had kept in possession of illicit liquor contained in 9 plastic covers of 350 ml each while standing on the public road which is situated on the northern side of Parankiyattu Kurisu-Kurumbathuruth Road of Puliyanthuruth for the purpose of sale and thereby committed the offence punishable under S. 55(a) of the Abkari Act. The accused pleaded not guilty. But, no evidence, either oral or documentary, was produced in defence.

(2.) Though this Revision has been filed on various grounds challenging the conviction and sentence, the learned counsel for the revision petitioner mainly focuses on a grave illegality committed by the Appellate Court. The learned counsel contends that, though the accused was charge sheeted and he has faced trial for the offence punishable under S. 55(a), the learned Asst. Sessions Judge found that the offence under S. 55(a) was neither attracted nor proved by the prosecution; whereas the offence under S. 58 stands proved by prosecution evidence. Hence, the revision petitioner was convicted for the offence punishable under S. 58 of the Abkari Act and sentenced thereunder. According to the learned counsel, the alteration of conviction from S. 55(a) to S. 58 by the trial court impliedly amounts to acquittal of the revision petitioner under S. 55(a) and no appeal had been filed by the prosecution against the acquittal under S. 55(a). But, in the appeal challenging the conviction under S. 58, filed by the revision petitioner, the learned Sessions Judge went wrong by altering the conviction from S. 58 to S. 55(a), for which the trial court had acquitted him. In short, the appellate court has exercised jurisdiction which was not vested in it under S. 386 of the Cr.P.C. The learned counsel cited the decision Sely v. State of Kerala, 2002 1 KerLT 416

(3.) The learned Public Prosecutor, per contra, advanced arguments to justify the impugned judgment and cited R. Janakiraman v. State, 2006 AIR(SC) 1106and submitted that the alteration of conviction from S. 58 to S. 55(a) of the Abkari Act, in appeal, is sustainable and not illegal.