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. 1515 of 2002 ( )
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AGAINST THE ORDER/JUDGMENT IN Crl.A 500/2000 of SESSIONS COURT, KOZHIKODE DATED 19-10-2002
AGAINST THE ORDER/JUDGMENT IN CC 49/1998 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-III, KOZHIKODE DATED 08-11-2000
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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BALAN, NAMBIDIPARAMBATH, S/O. PACHAN, THAMARASSERI AMSOM, MARUTHAD DESOM.
BY ADV. SRI.P.S.SREEDHARAN PILLAI
## RESPONDENTS/RESPONDENTS/COMPLAINANT::
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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. EXCISE INSPECTOR, CHELANNUR RANGE.
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. 1515 of 2002 ----------------------------------Dated this the 5[th] day of August, 2013
## O R D E R
Petitioner, who is the accused in C.C.No.49 of 1998 of the Judicial First Class Magistrate’s Court-III, Kozhikode, was convicted by the said court for the offence under Section 55(b) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `25,000/-, in default, to undergo simple imprisonment for six more months. The petitioner challenged the conviction and sentence before the Sessions Court, Kozhikode through Criminal Appeal No.500 of 2000. The learned Sessions Judge allowed the appeal in part by maintaining the conviction and by modifying the sentence as rigorous imprisonment for three months and to pay a fine of `25,000/-, in default, to undergo simple imprisonment for one more month.
2. The prosecution case is that on 11.01.1997 at 11.30 p.m., the petitioner was found engaged in brewing
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arrack at the bank of a stream, flowing from east to west, from Kakkur to Korappuzha at Chandramkadavu, Kannankara Amsom, Maruthad Desom.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. According to the learned counsel for the petitioner, there are contradictions in the evidence of PW1 and the contents of Exhibit P1 Mahazar relating to the quantity of the sample drawn from the arrack. It is also argued that the material objects were produced before trial court only on 14.01.1997 and therefore, there is every likelihood of manipulation and tampering with the samples and the contraband.
4. PW1 was the Preventive Officer attached to the Excise Control Room, Kozhikode on 11.01.1997. According to him, he along with the Excise party could see the petitioner engaged in brewing arrack at the bank of a stream and the petitioner was caught red handed. Out of the arrack, a sample of 150 ml was drawn. On this point, it has to be noted that Exhibit P1 mahazar shows
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that the sample drawn from the arrack was of 180 ml. As rightly pointed out by the lower appellate court, the said entry in the deposition of PW1, as 150 ml, could only be a mistake committed by PW1 in telling the court as 150 instead of 180 or it might have a mistake committed by the learned Magistrate while recording the evidence. All the other documents clearly reveal that the sample in question was of 180 ml. The sample produced before the trial court as well as the sample reached the laboratory was also of 180 ml of arrack. Matters being so, the entry in the deposition of PW1 as 150 ml is a mistake and it was made instead of the actual quantity of 180 ml.
5. The contraband was seized through Exhibit P1 seizure mahazar. The utensils and the implements made use of by the petitioner, for brewing arrack were also seized and the same were identified as MO1 to MO3, MO5 series and MO6 series. The bottle, by which the distilled arrack was being collected, was identified as
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MO4. According to PW1, the accused was arrested and he was released on bail. The material objects and records were handed over to the Preventive officer named Taj Mohammed.
6. PW2 was the Guard attached to the Excise Control Room, who also accompanied PW1. He has fully corroborated the versions of PW1 and has identified the petitioner.
7. PW3 is an independent witness. According to him, he did not see the detection of the crime. At the same time, he has admitted that he saw the Excise Officials taking the petitioner to the jeep with implements and utensils for brewing arrack at the place near Chandramkadavu. He affixed his signature in Exhibit P1 mahazar.
8. PW4 is another independent witness. According to him, he saw the petitioner sitting inside the jeep, along with the Excise Officials. He also has stated in evidence that the implements and utensils for brewing
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arrack, were also present along with the petitioner in the jeep.
9. PW5 was the Preventive Officer, who was in charge of the Excise Inspector, Chelannur on 12.01.1997. He received the properties and records involved in O.R.No.7 of 1997, based on which, he registered C.R.No.8 of 1997 through Exhibit P3 occurrence report. PW6, the Excise Inspector, Chelannur sent the material objects and the documents to the court with requisition for Chemical Analysis of the sample. Exhibit P5 is the certificate of Chemical Analysis, which reveals that the sample in Item No.1 contained 21.75 % by volume of Ethyl Alcohol and Item No.2 contained 4.26 % by volume of Ethyl Alcohol. Item No.1 is the sample of 180 ml of arrack and Item No.2 is the sample of 375 ml of wash.
10. The learned counsel for the petitioner has pointed out that there were signs of lables tore away from material objects produced before court. It seems
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that the material objects were clearly identified and they were not tampered with. On going through the concurrent findings of the facts entered by both the courts below, I do not find any illegality, or irregularity, or impropriety in the conviction and there is absolutely nothing to interfere with the conviction passed by the courts below. Regarding the sentence, the learned counsel for the petitioner has pointed out that the petitioner is presently aged 62 and on that ground, prays for leniency.
11. 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
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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, 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
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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.”
12. Considering the facts and circumstances of the
case and the meager quantity of the contraband involved and also the old age of the petitioner, I am of the view that the petitioner is entitled to leniency in the question of sentence. I am of the view that a sentence
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of simple imprisonment for one month and to pay a fine of `.25,000/-, in default, to undergo simple imprisonment for 15 more days, will meet the ends of justice.
In the result, this revision petition is allowed in part by maintaining the conviction and modifying the sentence as follows:
The petitioner is sentenced to undergo simple imprisonment for one month and to pay a fine of `.25,000/-, in default, to undergo simple imprisonment for 15 more days.
Sd/- B. KEMAL PASHA, JUDGE.
// True Copy //
P.A. To Judge
DSV/-
