ABDUL KALAM v. STATE OF KERALA

Crl.R.P.No.1964/2008-:3:-5. The learned Magistrate, after trial, as per judgment dated 27.4.07 acquitted the revision petitioner of the offence punishable under Section 340 of the Kerala Municipality Act and convicted him of the other two offences for which the punishment was only fine as indicated above. On appeal preferred by there vision petitioner before the Addl. Sessions Court, Kollam, the lower appellate court as per judgment dated 5.01.08 acquitted the revision petitioner of the offences punishable under Section340 Kerala Municipality Act, but confirmed the conviction entered and the sentence passed against the revision petitioner for the other offence. Hence, this Revision. 6. The learned counsel for the revision petitioner contended that Ext.P2 spot mahazar which was the basic document relied on by the prosecution, allegedly prepared byPW1, Jayakumar, Second Grade Health Inspector, PunalurMunicipality was really not the Mahazar evidencing personal inspection by PW1.

The recital in Ext.P2 mahazar will show that the inspection was conducted by one Anas who was examined asPW2. Hence the courts below went wrong in relying on Ext.P2 to hold that the spot inspection conducted by PW1 revealed the Crl.R.P.No.1964/2008-:4:-offences committed by the revision petitioner. 7. I cannot agree. A perusal of Ext.P2 Mahazar shows that it was Anaz the junior Health Inspector, who was examined asPW2, who initially conducted an inspection and found that the petitioner was discharging filthy water into the public road. TheMahazar proceeds to say that, thereafter a fine was imposed on the petitioner, the petitioner obtained a stay of recovery of the fine in a writ petition filed before this Court and that, even thereafter, the petitioner was continuing with the act of discharging filthy water into the public road contrary to the conditions imposed by this Court in the said writ petition.

This isan observation made by the author of the Mahazar namely PW1,Jayakumar. Moreover, Anaz, the Junior Health Inspector is also awitness to the said Mahazar. Hence it cannot be said that the reliance placed on Ext.P2 Mahazar was not justified. Theconviction was recorded by the courts below concurrently aftera careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. If at all the courts below had erred, that was on the side of leniency in not Crl.R.P.No.1964/2008-:5:-awarding a sentence of imprisonment on the revision petitioner. However, I refrain from taking further action in the matter in the hope that the petitioner will not continue to contaminate the public road and nearby places by draining filthy water. This Crl.R.P. is dismissed.V.Ramkumar, Judge.sj