IN THE HIGH COURT OF KERALA AT ERNAKULAM
## PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935
CRL.A.No. 946 of 2004 (B)
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AGAINST THE JUDGMENT IN SC 289/2001 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)I, MANJERI DATED 07-06-2004
APPELLANT/ACCUSED:
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ARAMUGHAN S/O. KOLKADAN CHANGARU, NANAD HOUSE, NEDIYIRIPPU AMSOM, NEDIYIRIPPU DESOM ERNAD TALUK.
BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AV
## **B. KEMAL PASHA, J**
## **------------------------------------** Crl.A.No. 946 of 2004 **-----------------------------------** Dated this the 14[th] day of August, 2013
## **J U D G M E N T**
The accused in S.C.No.289/2001 of the Additional Sessions Court (Adhoc-I), Manjeri, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more year, has come up in appeal.
2. The prosecution case is that on 25.10.1999, while PW1, Excise Inspector, Malappuram Excise Range and party were on patrol duty, they could see the appellant coming with a black can at 6.00 pm. He was intercepted and the contents of the can was verified. The can was found containing 2 litres of arrack. The appellant was placed under arrest through Ext.P2 arrest memo. The contraband was seized through Ext.P1 seizure mahazar. A sample of 375 ml was drawn from the contraband. On the next day, the appellant, the material objects and the records were produced before the court. PW5, Excise Inspector conducted the investigation. On obtaining Ext.P7 certificate of chemical
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analysis, the complaint was filed.
3. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P7 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 and convicted him thereunder, and sentenced him as aforesaid.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor. According to the learned counsel for the appellant, there is no sufficient evidence to connect the appellant with the offence under Section 55(a) of the Abkari Act, especially when the independent witnesses were turned hostile to the prosecution.
5. PW1 was the Excise Inspector, Malappuram Excise Range as on 25.10.1999. On that day, while he along with the excise party were on patrol duty at 6.00 p.m, they could see the appellant coming with MO1 black can containing 2 litres of arrack. He placed under arrest through Ext.P2 arrest memo. The contraband was seized through Ext.P1 mahazar. A sample was drawn in 375ml bottle. On reaching the Excise
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Office, Ext.P3 occurrence report was registered. The accused as well as the material objects and records were produced on the next day itself before court. Ext.P4 is the property list by which the material objects were produced. A forwarding note was also filed for subjecting the sample to chemical analysis. Ext.P5 is the copy of the forwarding note.
6. PW2 was also present in the excise party. He was present along with PW1 at the time of seizure. He is a signatory to Ext.P1. He also identified the appellant and MO1. PW2 has corroborated the versions of PW1 in all material particulars. PW3, who is an independent witness cited by the prosecution, has turned hostile to the prosecution and did not support the prosecution case. PW4, who is one of the relatives of the appellant, has even though turned hostile to the prosecution and did not support the prosecution case relating to the seizure, admitted his signature in Ext.P1. PW5 conducted the investigation and on obtaining Ext.P7 certificate of chemical analysis, he filed the complaint. Ext.P7 shows that the seal on the sample bottle was intact and found tallying with the sample seal provided.
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Ethyl Alcohol was detected in the sample, and that the sample contained 36.48% by volume of Ethyl Alcohol.
7. This is a case in which the contraband as well as the sample were produced before court on the next day itself. The seizure was almost during the previous night. On going through the evidence adduced by the prosecution, I do not find anything to interfere with the conviction entered by the court below.
8. Regarding sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive and that the court below has failed to take note of the meagre quantity of the contraband allegedly seized from the appellant. The quantity of the contraband involved in this case is just 2 litres of arrack. 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
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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 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.”
## 9. 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
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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.”
10. Going by the dictum laid down by the Apex Court in the decision noted supra, the small quantity of contraband involved, and the facts and circumstances of this case, I am of the view that sentence of simple imprisonment for 2 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 2 months and to pay 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
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