IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935
CRL.A.No. 183 of 2005 ( )
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AGAINST THE ORDER/JUDGMENT IN SC 237/2002 of ADDL.SESSIONS COURT (ADHOC-II), THODUPUZHA DATED 01-01-2005
AGAINST THE ORDER/JUDGMENT IN CP 70/2000 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, NEDUMKANDOM
APPELLANT:
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BABU, S/O. NARAYANAN PILLAI, KOTTARATHIL HOUSE, PUSHPAKANDAM KARA, PARATHODU VILLAGE.
BY ADVS.SRI.T.J.MICHAEL SRI.P.NOOR SEMIR
RESPONDENT :
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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.
BY THE PUBLIC PROSECUTOR SRI. SREEJITH V.S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
B. KEMAL PASHA, J -----------------------------------Crl.A.No. 183 of 2005 ----------------------------------Dated this the 19[th] day of August, 2013
## J U D G M E N T
The accused in S.C.No.237 of 2002 of the Additional Sessions Court (Adhoc-II), Thodupuzha, who stands convicted under Section 8 (1) and (2) 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 four more months, has come up in appeal.
2. The prosecution case is that on 07.01.2000 at 07.00 p.m., PW3, the Sub Inspector of Police, Nedumkandam and party while engaged in the law and order duty, could find the appellant in possession of a 5 litres can and a glass tumbler on a pathway situated at the northern side of Thookkupalam-Ramackalmedu road. The can, on verification, was found containing 4½ liters of arrack. The appellant was placed under arrest and
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the contraband was seized through Exhibit P2 mahazar. Two samples were drawn. He went to the Police Station with the appellant, material objects and the records and registered the crime through Exhibit P4(a) First Information Report. The appellant was produced before court through remand report. The properties were produced before court through Exhibit P5 property list. The forwarding note was given, the copy of which is Exhibit P6. PW4 Circle Inspector of Police, Nedumkandam verified the records and on obtaining Exhibit P7 certificate of chemical analysis filed the final report.
3. On the side of the prosecution, PWs1 to 4 were examined and Exhibits P1 to P7 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8 (1) and (2) of the Abkari Act, convicted him
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thereunder and sentenced him as aforesaid.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that the evidence adduced by the prosecution is not sufficient to connect the appellant with the crime and therefore, the appellant is entitled to an acquittal. PW3 has proved the case of the prosecution regarding the seizure. According to him, on verification, it was found that the can contained 4½ litres of arrack. The appellant was placed under arrest through Exhibit P3 arrest memo. The contraband was seized through Exhibit P2 seizure mahazar. Two samples of 100 ml and 150 ml were drawn. He reached the Police Station with the appellant, the material objects, and records and on the basis of Exhibit P4 suomotu report, registered the crime through Exhibit P4(a) First Information Report. According to him, the material
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objects were produced before court through Exhibit P5 property list. He gave the forwarding note, a copy of which is Exhibit P6.
5. The evidence of PW3 is fully corroborated by the evidence of PW2 in all material particulars. PW2 who was the Police Constable was present along with PW1 at the time of seizure. There is absolutely no contradictions in the versions of PW1 and PW3 regarding the incident. It is true that PW1 who was an independent witness cited by the prosecution has turned hostile to the prosecution and did not support the prosecution case.
6. PW4 was the Circle Inspector of Police Nedumkandam. He verified the records and filed the final report, on getting Exhibit P7 certificate of chemical analysis.
7. According to the learned counsel for the
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appellant, there was 9 days delay in the production of the contraband before the court. At the same time, it seems that without much delay the records were produced before the court and till the production of the contraband, it was kept in the safe custody of PW3. When the records were produced, there is no reason to take a view that there was delay in production of the contraband before the court. On going through the evidence and records, I do not find anything to interfere with the conviction passed by the court below. Regarding the sentence, the learned counsel for the appellant has sought for the maximum leniency in the question of sentence by pointing out that only a meagre quantity of contraband was involved in this case.
8. 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
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## 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 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,
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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
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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. Following the dictum laid down by the Apex court in the decision noted supra and considering the facts and circumstances of this case, I am satisfied that the appellant is entitled to maximum leniency in the question of sentence. I am of the view that a sentence of simple imprisonment for three months and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for two more months, will meet the ends of justice in this case.
In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:
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The appellant is sentenced to undergo simple imprisonment for 3 (three) months and to pay a fine of `1,00,000/- (Rupees One Lakh only), in default, to undergo simple imprisonment for 2 (two) more month. 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 Cr.P.C.
## Sd/- B. KEMAL PASHA, JUDGE.
// True Copy //
P.A. To Judge
DSV/-
