Criminal Appeal No. 285 of 2005 (Against the judgment in SC 579/2004 of the Addl. Sessions Court (Adhoc-II), Kasaragod)

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. 285 of 2005 ( ) -------------------------- AGAINST THE JUDGMENT IN SC 579/2004 of ADDL.SESSIONS COURT (ADHOC-II) KASARAGODE DATED 01-02-2005 APPELLANT/ACCUSED: ---------------------------------------- T.NARAYANAN, S/O.PAKKEERAN, THANATHINGAL, KANATHUR PAYOLAM, MULIYAR VILLAGE. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------------- ## 1. EXCISE INSPECTOR, KASARAGOD EXCISE RANGE, KASARAGOD. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY 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: AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl. Appeal No. 285 of 2005 **---------------------------------------** Dated this the 19[th] day of August, 2013 ## **J U D G M E N T** The accused in Sessions Case No.579 of 2004 of the Additional Sessions Court (Adhoc-II), Kasaragod, who stands convicted under Section 55(a) 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 1.2.2002 at 6 p.m. PW3 Excise Inspector of Kasaragod Excise Range and party, while on patrol duty, could see the appellant coming through Bovikkanam-Kanathur road at Kanathur by holding a plastic sack. He was intercepted and the contents of the plastic sack was verified. The sack was found containing 100 polythene packets each containing 100 ml of arrack. ## Crl.A.No. 285 of 2005 -:2:- Consequently, the appellant was placed under arrest and the contraband was seized through Ext.P1 seizure mahazar. A sample of 200 ml was drawn from the contraband and the same was sealed. With the appellant, the material objects and the records, he reached the excise office and registered Ext.P4 occurrence report. He prepared Ext.P5 property list and forwarding note, the copy of which is marked as Ext.P6 and produced the contraband and the samples along with the accused before court. 3. PW4 Circle Inspector of Excise, Kasaragod took over the investigation and on getting Ext.P7 certificate of chemical analysis, filed the complaint. 4. On the side of the prosecution PWs 1 to 4 were examined, Exts.P1 to P7 were marked. MO1 series were identified. No 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. 5. Heard the learned counsel for the appellant ## Crl.A.No. 285 of 2005 -:3:- 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 argued that the material objects even though allegedly labelled, did not contain any label at the time of its identification before the court below and therefore, the identification was not proper. It is also pointed out that there is no independent corroboration of the occurrence. 6. PW3 was the Excise inspector, Kasaragod Excise Range. According to him, on 1.2.2002 at 6 p.m. while he along with excise party were on patrol duty, they could see the appellant coming through the said road with a plastic sack in his hand containing some thing. On seeing the excise party, the appellant tried to move away. He was intercepted and the contents of the sack was verified. On verification, it could be seen that the packet contained 100 polythene packets each containing 100 ml of arrack. The appellant was placed under arrest and the contraband was seized through ## Crl.A.No. 285 of 2005 -:4:- Ext.P1 seizure mahazar. A sample of 200 ml was drawn and the same was sealed. He reached the office along with the appellant, material objects and the records and registered Ext.P4 occurrence report. 7. According to PW3, he prepared Ext.P5 property list and forwarding note, the copy of which is marked as Ext.P6. The specimen impression of the seal was affixed in the forwarding note. On 2.2.2002, in the morning itself the appellant along with the material objects and the case records were produced before court. He identified the plastic sack, the empty packets from which sample was drawn and the remaining packets containing arrack as MO1 series. In cross-examination, he admitted that at the time of examination the label affixed on the sack was not seen. At the same time, all the other descriptions given by him regarding the seizure, the number of packets, the material objects etc. were coinciding and therefore it cannot be said that his identification of the material objects was not correct. It is true that, as usual in abkari cases, PW1 cited by the ## Crl.A.No. 285 of 2005 -:5:- prosecution as an independent witness to prove the occurrence turned hostile to the prosecution and did not support the prosecution case, though he has admitted his signature in Ext.P1 mahazar. He has not given any specific explanation as to how he happened to affix his signature in Ext.P1. PW2 is the Village Officer, Mooliyar who prepared Ext.P2 sketch regarding the scene of occurrence. 8. PW4 was the Circle Inspector of Excise, Kasaragod as on 22.3.2004. He took over the investigation, questioned the witnesses and recorded their statements. He filed the complaint on getting Ext.P7 certificate of chemical analysis. Ext.P7 revealed that the seal of the sample was in tact and it tallied with the sample seal provided. On analysis, the sample was found containing 39.07% by volume of ethyl alcohol. On going through the materials brought out by the prosecution through the evidence, it could be seen that the prosecution could establish the guilt of the appellant for the offence under Section 55(a) of the Abkari Act, and therefore, the conviction passed by the court below is not liable to be ## Crl.A.No. 285 of 2005 ## -:6:- interfered with. 9. Regarding the sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is harsh and excessive when considering the meager quantity of the contraband involved in this case. No criminal antecedents have been reported against the appellant. 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_ ## Crl.A.No. 285 of 2005 -:7:- _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 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_ Crl.A.No. 285 of 2005 -:8:- _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.”_ 10. Considering the facts and circumstances, the meager quantity of contraband involved in this case, and the dictum laid down by the Apex Court in _**Sasikumar's case** (supra),_ I am satisfied 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 ## Crl.A.No. 285 of 2005 -:9:- 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: The appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/-(Rupees One Lakh only), in default, to undergo simple imprisonment for two more months. 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