Chinnan alias Chandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935** **CRL.A.No. 928 of 2004 ( )** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 87/2004 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 21-05-2004** ## **APPELLANT(S)/ACCUSED::** **------------------------------------------** **CHINNAN ALIAS CHANDRAN, S/O. KANDAN, MAYANNUR D.C. COLONY, MAYANNUR DESOM, KONDAZHI VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M** ## **RESPONDENT(S)/COMPLAINANT::** **------------------------------------------------------** **STATE OF KERALA, REPRESENTING THE EXCISE INSPECTOR, PAZHAYANNUR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. SHEEBA M.T.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B. KEMAL PASHA, J** ## **---------------------------------------------** Crl. Appeal No. 928 of 2004 **-----------------------------------------------** Dated this the 5[th] day of September, 2013 ## **J U D G M E N T** The accused in Sessions Case No.87 of 2004 of the III Additional Sessions Court (Adhoc-I), Thrissur, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for three more months, has come up in appeal. 2. The prosecution case is that on 3.3.1999 at 5 pm, the appellant was found in possession of two litres of arrack in a can of 5 litre's capacity, at the Panchayath road lying at the west of Kunnumpara in U.C. colony of Mayannur desom in Kondazhi Village. 3. The crime was detected by PW1 Preventive Officer who was engaged in patrol duty along with PW4 ## Crl.A.No. 928 of 2004 **==> picture [22 x 9] intentionally omitted <==** and other members of the Excise party. On seeing the appellant coming with the can, he was intercepted, questioned and the contents of the can was verified. The can was found containing two litres of arrack. The same was seized through Ext.P1 seizure mahazar. The appellant was placed under arrest. A sample of 200 ml was drawn in a 375 ml bottle. Ext.P3 arrest notice was given. The appellant along with the material objects and records were produced before PW6, Excise Inspector, who prepared Ext.P6 occurrence report. The appellant was produced before court through Ext.P8 remand report. The material objects were produced before court. PW7 Excise Inspector filed the complaint on getting Ext.P9 certificate of chemical analysis. 4. On the side of the prosecution PWs 1 to 7 were examined, Exts.P1 to P10 were marked, and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence Crl.A.No. 928 of 2004 -:3:- punishable under Section 58 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. According to the learned counsel for the appellant, there is no sufficient evidence adduced by the prosecution to connect the appellant with the crime. It is also argued that there was no proper sampling. 6. According to PW1, on seeing the appellant with the contraband, the appellant was intercepted, questioned and the contents of MO1 can was verified. The can was found containing two litres of arrack from which, a sample of 200 ml was drawn. The contraband was seized through Ext.P1 mahazar. The appellant was placed under arrest through Ext.P2 arrest memo. He gave Ext.P3 arrest notice. 7. PW2 and PW3 who were cited as independent occurrence witnesses, have turned hostile to the Crl.A.No. 928 of 2004 -:4:- prosecution. According to them, they did not see the arrest of the appellant. At the same time, they have admitted their signatures in Exts.P1, P2 and P4. 8. PW4 was the Excise guard who was also present along with PW1 at the time of seizure. He has fully corroborated the versions of PW1 in all material particulars. PW6 was the Excise Inspector before whom the appellant along with the material objects and records were produced. He prepared Ext.P6 occurrence report. The appellant was produced before court through Ext.P8 remand report. It seems that the material objects were produced before court through Ext.P7 property list on 4.3.1999 itself. Ext.P9 is the certificate of chemical analysis which reveals that the sample contained 29.53% by volume of ethyl alcohol. It has clearly come out that a sample was properly drawn from the contraband and the same was duly produced before court through Ext.P7 property list on the next day to the ## Crl.A.No. 928 of 2004 -:5:- seizure. Matters being so, I do not find any merit in the argument that any sample was not properly drawn. On going through the evidence and records in this case I do not find anything to interfere with the conviction passed by the court below. 9. Regarding the sentence, the learned counsel for the appellant has pointed out that the court below has not taken note of the meager quantity of the contraband involved in this case at the time when the sentence was imposed. 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_ Crl.A.No. 928 of 2004 -:6:- _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, 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_ Crl.A.No. 928 of 2004 ## -:7:- _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_ ## Crl.A.No. 928 of 2004 -:8:- _is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.”_ 10. Considering the guidelines given by the Apex Court in the decision noted _supra,_ and the facts and circumstances of the case as pointed out by the learned counsel for the appellant, and the meager quantity of contraband involved in this case, I am satisfied that a sentence of simple imprisonment for two 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 by maintaining the conviction and modifying the sentence as follows: The appellant is sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1,00,000/-(Rupees one lakh only), in default, to ## Crl.A.No. 928 of 2004 -:9:- undergo simple imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the period already 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** **ul/-** **[True copy]** **P.S. to Judge**