ANIL KUMAR, S/O GOPALAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 13TH DAY OF AUGUST 2013/22ND SRAVANA, 1935 CRL.A.No. 813 of 2005 ( ) -------------------------- AGAINST THE JUDGMENT IN SC 175/2003 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI DATED 06-04-2005 APPELLANT/ACCUSED.: ------------------------------------------ ANIL KUMAR. S/O.GOPALAN, VAZHAYIL VEEDU, KARIPPURAM, ERNAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/STATE.: ------------------------------------------ THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MALAPPURAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI 31. R BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.A.No. 813 of 2005 **-----------------------------------** Dated this the 13[th] day of August, 2013 ## **J U D G M E N T** The accused in S.C.No.175/2003 of the Additional Sessions Court (Adhoc-III), Manjeri who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for three more months, has come up in appeal. 2. The prosecution case is that on 11.10.2000 at 5.30 p.m, the appellant was found in possession of 2 litres of arrack in a can at a place called Vazhayur, in contravention of the provisions of the Abkari Act. 3. PW1, Excise Inspector, Malappuram Range, on detecting the offence, seized the contraband through Ext.P3 seizure mahazar. He placed the appellant under arrest through Ext.P1 arrest memo. The sample was drawn from the contraband and it was sealed. He took the appellant along with properties and the records to the Excise Office, Malappuram, where C.R.No.9/2000 was registered through Crl.A.No. 813 of 2005 2 Ext.P4 occurrence report. On the next day the appellant and the properties along with records were produced before court. Ext.P6 forwarding note was also filed. On obtaining Ext.P7 certificate of chemical analysis, the complaint was filed by PW6, Circle Inspector of Excise. 4. On the side of prosecution PWs.1 to 6 were examined and Exts.P1 to P9 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55 (a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that there are no sufficient materials or evidence to connect the appellant with the offence punishable under Section 55(a) of the Abkari Act. 6. PW1 has proved the case of the prosecution. It seems that PW1 has drawn a sample at the spot in the presence of the appellant. He prepared Ext.P3 seizure mahazar and placed the appellant under arrest through Crl.A.No. 813 of 2005 3 Ext.P1 arrest memo. He took the appellant along with the contraband, the sample and the records to the Excise Office. C.R No.9/2000 was registered through Ext.P4 occurrence report. He prepared Ext.P5 property list. The appellant along with the contraband and the records including Ext.P5 were produced before court without any delay. Ext.P6 requisition was filed for subjecting the sample to chemical analysis. 7. PW2 was the Preventive Officer of Excise Range, Malappuram, who was also present along with PW1 at the time of seizure. He also has proved the occurrence and seizure. He has corroborated the versions of PW1 in all material particulars. It is true that PWs.3 and 4, who were cited as independent witnesses by the prosecution has turned hostile and did not support prosecution case; but they have admitted their signatures in Ext.P3. PW5, who was also present in the excise party, has proved the seizure as well as the production of the appellant before the court on the very next day. He proved Ext.P5 property list as well as Ext.P3 mahazar. Ext.P7 proves that the sample was intact and the same contained 18.40% by volume of Ethyl Alcohol. Crl.A.No. 813 of 2005 4 8. From the evidence discussed above, it is come out that the appellant has committed the offence punishable under Section 55(a) of the Abkari Act and that the court below has rightly found him guilty. There is absolutely nothing to interfere with the conviction passed by the court below. 9. Regarding sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive. The quantity of the arrack involved in this case is just 2 litres. In the decision 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 Crl.A.No. 813 of 2005 5 months, as 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.” ## 10. 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 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.” ## 11. Going by the dictum laid down by the Apex Court in Crl.A.No. 813 of 2005 6 the decision noted supra, the small quantity of contraband involved, and the facts and circumstances of this case, I am of the view that a sentence of simple imprisonment for 3 months and a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more month, will meet the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and modifying the sentence as simple imprisonment for 3 months and a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the period, undergone by him in custody in connection with the investigation, inquiry and trial of this case under Section 428 of the Code of Criminal Procedure. Sd/- **B. KEMAL PASHA, JUDGE** AV /True Copy/ P.A to Judge Crl.A.No. 813 of 2005 7