Babu v. State of Kerala through the Excise Inspector, Thamarassery Excise Range

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. 806 of 2005 ( ) ----------------------------------- AGAINST THE ORDER/JUDGMENT IN SC 62/2002 of ADDL.SESSIONS COURT (ADHOC-II), KOZHIKODE DATED 16-04-2005 APPELLANT/ACCUSED NO.1: -------------------------------------- BABU, S/O.DAMODARAN, VANABOOMIYIL, CHANDRAKANTHAM, KIDAVUR AMSOM, CHAMAL DESOM, KOZHIKODE TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA THROUGH THE EXCISE INSPECTOR, THAMARASSERY EXCISE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY THE PUBLIC PROSECUTOR SMT. SHEEBA M.T. 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. 806 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.62 of 2002 of the Additional Sessions Court (Adhoc-II), Kozhikode, 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 Rs.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 23.05.2000 at 02.30 pm, PW1 Preventive Officer of Excise, Thamarassery Excise Range and party while on patrol duty could see the appellant pouring arrack from a 10 litres can to a 5 litres can held by the 2[nd] accused at a place called Kidavur. Consequently, they were placed under arrest and the contraband was seized through Exhibit P1 mahazar. The appellant and the 2[nd] accused were arrested through Exhibits P2 and P3 arrest memos. Crl.A.No. 806 of 2005 2 Samples were drawn at the spot. PW1 took the appellant and the other accused along with the material objects and records to the Excise Office, where C.R.No.8 of 2000 was registered through Exhibit P4 occurrence report. The appellant and the other accused were produced before court through Exhibit P5 remand report. PW6, the Excise Inspector, Thamarassery Excise Range caused the production of the contraband and the samples before court through Exhibit P7 property list. The forwarding note was given, the copy of which is Exhibit P8, for subjecting the sample to the chemical analysis. On obtaining Exhibit P9 certificate of chemical analysis, the complaint was filed. 3. Even prior to the committal, the 2[nd] accused absconded and consequently the case against the appellant alone was committed. On the side of the prosecution, PWs 1 to 6 were examined and Exhibits P1 to P9 were marked. MOs 1 to 2 were identified. No Crl.A.No. 806 of 2005 3 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. 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. It is also pointed out that there are contradictions in the versions of PW1 and PW2 regarding the incident and that PW3 who was the independent witness cited by the prosecution has not supported the prosecution case regarding the seizure. 5. PW1 who was the Preventive Officer of Excise, Thamarassery Excise Range has proved the seizure. According to him, he saw the appellant pouring arrack from a 10 litres can, identified as MO1, to a 5 litres can, identified as MO2, held by the 2[nd] accused, at a place Crl.A.No. 806 of 2005 4 called Kidavur. They were placed under arrest and the contraband was seized. A sample of 180 ml each from both the cans were drawn. MO1 can contained three litres and MO2 can contained 2 litres of arrack. Exhibit P1 seizure mahazar was prepared. According to PW1, material objects were entrusted to PW6 Excise Inspector. 6. PW2 was the Excise Guard, who was present along with PW1 at the time of seizure. He has also proved the incident, identified the appellant, and MO1 and MO2. His versions clearly corroborate the versions of PW1 regarding the incident in all material particulars. It is true that PW3, who was cited as an occurrence witness has turned hostile to the prosecution and did not support the prosecution case. 7. PW4 was the Special Village Officer, Kidavur, who prepared Exhibit P5 search regarding the scene of occurrence. PW6 Excise Inspector conducted the investigation in this case. He prepared Exhibit P7 Crl.A.No. 806 of 2005 5 property list and produced the material objects before court along with the forwarding note, a copy of which is marked as Exhibit P8. Exhibit P9 is the certificate of chemical analysis which reveals that one of the samples contained 19.06% and the other sample contained 25.25% by volumes of Ethyl Alcohol. PW5 who was the successor in office of PW6 continued the investigation and filed the complaint. On going through the evidence and records of this case, it has clearly come out that the appellant has committed an offence under Section 55 (a) of the Abkari Act. There is absolutely nothing to interfere with the conviction passed by the court below. 8. 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 not considered the meagre quantity of contraband involved in this case. It seems that the contraband seized from the possession of the appellant was only Crl.A.No. 806 of 2005 6 three litres of arrack and the other accused is absconding. 9. 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 awarded by the High Court, to one year and Crl.A.No. 806 of 2005 7 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.A.No. 806 of 2005 8 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.” 10. Following the dictum laid down before 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 one more month, will meet the ends of justice in this case. In the result, this Criminal Appeal is allowed in part Crl.A.No. 806 of 2005 9 by maintaining the conviction and modifying the sentence as follows: 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 1 (one) 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/-