Alamy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935 Crl.Rev.Pet.No. 889 of 2003 ( ) ------------------------------------------ AGAINST THE ORDER/JUDGMENT IN CRL.A 150/1999 of ADDL.SESSIONS COURT (ADHOC-II)KASARAGODE DATED 03-01-2003 AGAINST THE ORDER/JUDGMENT IN SC 143/1998 of ASST. SESSIONS COURT, HOSDRUG DATED 02-07-1999 REVISION PETITIONER/APPELLANT/ACCUSED : -------------------------------------------------------------- ALAMY, S/O. KRISHNAN, AGED 57 YEARS, KORAVIL VEEDU, ACHIKANAM, AMBALATHARA VILLAGE, HOSDURG TALUK. BY ADV. SRI.SREEPRAKASH K.NAIR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE : ---------------------------------------------------------------------------- 1. THE EXCISE CIRCLE INSPECTOR, HOSDURG. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## **B. KEMAL PASHA, J** **------------------------------------** Crl. R.P. No. 889 of 2003 **-----------------------------------** Dated this the 5[th] day of August, 2013 ## **O R D E R** The petitioner, who is the accused in S.C.No.143 of 1998 of the Assistant Sessions Court, Hosdrug, was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for three more months. The petitioner unsuccessfully challenged his conviction and sentence before the Additional Sessions Court(Adhoc II), Kasaragod through Crl.A.No.150 of 1999. The learned Additional Sessions Judge concurred with the findings entered by the trial court and dismissed the appeal through the impugned judgment. Crl.R.P.889 of 2003 -:2:- 2. The prosecution case is that on 22.8.1997, PW1, Sub Inspector of Police, Hosdrug, along with the police party while engaged in an abkari raid, at about 7 p.m., could see the petitioner carrying a black can of 10 litre capacity, containing 6 litres of arrack. The petitioner was intercepted and the contraband was seized through Ext.P3 seizure mahazar. Samples were drawn. The petitioner was placed under arrest. They went to the police station with the petitioner and the material objects and registered Crime No.584 of 1997 through Ext.P2 first information report on the basis of Ext.P1 _suo motu_ statement. The samples were sent for chemical analysis through court. PW5, Assistant Sub Inspector of Police, Hosdrug conducted the investigation. Ext.P5 is the certificate of chemical analysis. He obtained Ext.P6 sketch from the village authorities. PW1 completed the investigation and laid the final report. 3. On the side of prosecution PWs.1 to 5 were examined and Exts.P1 to P6 were marked. MO1 was identified. No defence evidence was adduced. The trial court found the petitioner guilty of the offence punishable Crl.R.P.889 of 2003 -:3:- under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The said conviction and sentence stand confirmed by the lower appellate court through the impugned judgment. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Learned counsel for the petitioner has argued that there is no sufficient evidence to connect the petitioner with the offence alleged and therefore, the conviction and sentence passed by the courts below are liable to be set aside. 5. PW1 was the Sub Inspector of Police, Hosdrug. According to him, while he along with two other Sub Inspectors of Police and P.C.441 were engaged in abkari raid, they could see the petitioner coming with a black can. He was intercepted and the can was examined, which revealed that it contained 6 litres of arrack. It was seized through Ext.P3 seizure mahazar in the presence of witnesses and samples were drawn. He identified the can as MO1 and samples were produced before court and were sent for chemical analysis. PW2 was a probationary Sub Inspector as Crl.R.P.889 of 2003 -:4:- on the date of occurrence and he also had accompanied PW1. He identified the petitioner and corroborated the versions of PW1 regarding the seizure. 6. PW3 is an independent witness who has stated in evidence that he saw the seizure of MO1 from the petitioner. He admitted his signature in Ext.P3. PW4 is one of the attestors to Ext.P4 scene mahazar. 7. PW5 who conducted the investigation has proved Ext.P5 certificate of chemical analysis. He obtained Ext.P6 scene plan from the Village Officer. Ext.P5 certificate of chemical analysis shows that the two sealed bottles, each of 375 ml, involved in crime No.584/1997, were received at the laboratory and the seals were in tact. On analysis, it has come out that it contained 16.81% and 15.76% per volume of ethyl alcohol. On going through the evidence, it seems that there is no illegality, irregularity or impropriety in the findings entered by both the courts below on proved facts. On going through the concurrent findings on facts entered by both the courts below, I do not find any illegality, irregularity, or impropriety in the conviction passed by both Crl.R.P.889 of 2003 -:5:- the courts below. Matters being so, the conviction is not liable to be interfered with. 8. Regarding the sentence, it seems that this is a case wherein six litres of arrack was seized. In _**Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC)**_ , an identical situation was dealt with by the Apex Court. In the said decision, it was held in paragraph 11 as follows: _“We would like to further observe that from the facts of the case it is evident that the appellants and the other accused in this case are not the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they constitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as_ Crl.R.P.889 of 2003 -:6:- _awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days.”_ ## It was held in paragraph 13 as follows: _“Before parting with the record of the case, we would like to point out that S.8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the_ Crl.R.P.889 of 2003 -:7:- _countless possible variables in the commission of the offence under S.8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.”_ 9. Considering the facts and circumstances of this case, I am satisfied that the sentence of simple imprisonment for a term of three months, and a fine of Rs. l lakh, in default, simple imprisonment for two more months, will meet the ends of justice in this case. In the result, this Crl.R.P. is allowed in part by modifying the sentence as follows: The petitioner is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for two more months. It is made clear that the petitioner is entitled Crl.R.P.889 of 2003 -:8:- to set off, of the period of detention already undergone by him in connection with the investigation, inquiry, and trial of this case, under Section 428 Cr.P.C. Sd/- B. KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge Crl.R.P.889 of 2003 -:9:- B.KEMAL PASHA, J. ........................... Crl.R.P.889/03 ............................. O R D E R 5[th] day of August, 2013