Chunda @ Velayudhan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935 CRL.A.No. 485 of 2004 (A) ------------------------------------ AGAINST THE ORDER/JUDGMENT IN SC 120/2002 of ADDITIONAL SESSIONS COURT (ADHOC-I), THRISSUR DATED 26-02-2004 APPELLANT/ACCUSED:: -------------------------------- CHUNDA @ VELAYUDHAN, S/O.CHAMMY CHALLAN, CHOZHIYAMKODE, KOLLANI, MALESAMANGALAM DESOM, THIRUVILWAMALA VILLAGE TALAPPILLY TALUK. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT:: ------------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## B. KEMAL PASHA, J ------------------------------------ ## Crl.A.No. 485 of 2004 ----------------------------------Dated this the 22[nd] day of July, 2013 ## J U D G M E N T Accused in S.C.No.120 of 2002 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 a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for three months, has come up in appeal. 2. The prosecution case is that on 13.04.1999 at 3.45 p.m., the accused was found in possession of 2½ litres of illicit arrack on the road in front of the house of Kannan, S/o.Sankaran in Chozhiyamkodu Harijan Colony in Thiruvillwamala Village. 3. On the side of the prosecution, PWs 1 to 6 were examined and Exhibits P1 to P11 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilt of the offence punishable under Section 58 of the Abkari Act, convicted Crl.A.No. 485 of 2004 2 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, the appellant had no connection with this illicit arrack involved in this case and that he was taken into custody by the Excise Officers from the road, while he was coming from his place of work. Lastly, it was argued that the sentence imposed by the court below is highly excessive. 5. PW1, the preventive officer of the Excise Range Office, Pazhayannur along with the Excise party were on patrol duty on 13.04.1999 at about 3.45 p.m., and when they reached Chozhiyamkode Harijan Colony, they could see the appellant coming through the road by holding a black can. He was intercepted and the plastic can was examined. It was revealed that the can contained 2½ litres of illicit arrack. The appellant was placed under arrest. Sample was drawn from the contraband. Notice of arrest of the appellant was served on the wife of the Crl.A.No. 485 of 2004 3 appellant. The contraband was seized through Exhibit P1 mahazar. Exhibit P2 is the arrest memo. Exhibit P3 is the arrest notice and Exhibit P4 is the report of examination of the accused. PW1 identified MO1 as the can. 6. The evidence of PW1 is fully corroborated by the evidence of PW4, who was the Excise Guard present along with PW1 at the time of seizure. PW2 and PW3, who were cited as independent witnesses by the prosecution have, as usual in an Abkari case, turned hostile to the prosecution. Even though they have admitted their signatures in Exhibits P1, P2 and P4, their version is that they have affixed their signatures in the said records on the next morning at the Excise Office, Pazhayannur. 7. PW5 is the Village Officer, Thiruvillwamala, who prepared Exhibit P5 Sketch in respect of the scene of occurrence. PW6 was the Excise Inspector, Pazhayannur, before whom PW1 had produced the accused and 4 Crl.A.No. 485 of 2004 material objects. He registered Exhibit P6 crime and occurrence report and produced the contraband before court through Exhibit P7 property list. He prepared Exhibit P8 scene mahazar. The appellant was produced before court through Exhibit P9 remand report. On obtaining Exhibit P10 certificate of chemical analysis, the complaint was filed. Exhibit P10 certificate of chemical analysis showed that the sample contained 18.27 % by volume of Ethyl Alcohol. 8. On a perusal of the entire evidence in this case and the records, I do not find anything to substantiate the arguments resorted to by the learned counsel for the appellant that the appellant was in no way connected with the illicit arrack involved in this case. On a close scrutiny of the evidence and records, I do not find any infirmity in the finding entered by the court below as to the guilt of the appellant. Matters being so, the conviction passed by the court below is not liable to be interfered with. Crl.A.No. 485 of 2004 5 9. At the same time, the learned counsel for the appellant has pointed out that this is a case in which there is a small quantity of arrack measuring 2½ litres only was involved, that too, which contains only 18.27 % by volume of Ethyl Alcohol. It has been pointed out that the appellant is hailing from poor circumstances. 10. 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 Crl.A.No. 485 of 2004 6 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 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 Crl.A.No. 485 of 2004 7 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.” 11. Considering all the above, 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 two 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 the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the Crl.A.No. 485 of 2004 8 sentence as follows: The appellant is sentenced to undergo simple imprisonment for 2 (two) months and to pay a fine of `1,00,000/- (Rupees One Lakh only), in default, to undergo simple imprisonment for 2 (two) more months. 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/-