Gopakumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935 CRL.A.No. 1124 of 2004 (B) -------------------------------------- AGAINST THE ORDER/JUDGMENT IN SC 613/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 05-07-2004 APPELLANT/3RD ACCUSED : ------------------------------------- GOPAKUMAR, S/O.SADASIVAN, KAPPIL HOUSE, CHAVARKODU MURI, NAVAIKULAM VILLAGE. BY ADVS.SRI.S.D.ASOKAN SRI.R.SREERAJ SRI.NIDHI BALACHANDRAN SRI.ANIL R. NAIR RESPONDENT/COMPLAINANT: ---------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB-INSPECTOR OF POLICE, PARIPALLY POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl. Appeal No. 1124 of 2004 **-----------------------------------** Dated this the 7[th ] day of August, 2013 ## **J U D G M E N T** The third accused in S.C.No.613 of 1999 of the Additional Sessions Court(Adhoc-II), Kollam, who stands convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for one more year, has come up in appeal. 2. The prosecution case is that, the first accused is the licensee of the toddy shop No.81 situated by the side of Kalluvathukkal-Nadakkal road and second accused is the manager of the shop, and that on 4.6.1998 at 6.30 p.m., the appellant with the knowledge and consent of A1 and A2, possessed 60 packets of arrack, each containing 150 ml, for sales at the eastern side of the well situated within the Crl. Appeal 1124 of 2004 -:2:- compound where the toddy shop is situated. PW4, Sub Inspector of Police, Parippally, along with PWs.2 and 3 while on patrol duty got information regarding the sales of arrack at the compound of the toddy shop and thereby they rushed to the spot and found the appellant in possession of the said contraband. The appellant was placed under arrest and the contraband was seized. A sample of 350 ml was drawn. He registered Crime No.13 of 1998 against the appellant, through Ext.P2 FIR. The appellant was produced before court. The contraband was produced before court though Ext.P3 property list and requisition was filed for subjecting the sample to chemical analysis. On getting Ext.P4 certificate of chemical analysis, the final report was filed by PW5 who was the successor in office to PW4. A1 and A2 were absconding. 3. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P5 were marked. MO1 and MO2 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Sections 55(a) and (i) of the Abkari Act, Crl. Appeal 1124 of 2004 -:3:- convicted him, and sentenced him as aforesaid. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. Learned counsel for the appellant has argued that there is no independent evidence to prove the occurrence. There is delay in producing the contraband before court, and there is no sufficient evidence to prove as to the proper custody of the contraband till its production before court. On all these grounds, the conviction is bad in law, it is argued. The learned Public Prosecutor has argued that there is sufficient evidence to connect the appellant with the crime and there are no irregularities or illegalities in the procedure adopted by the investigating officer. 5. PW1, who is an independent witness, turned hostile to the prosecution and did not support the prosecution case. He has even denied his signature in Ext.P1 mahazar. 6. PW4 was the Sub Inspector of Police Parippally. According to him, he was on patrol duty along with PW2 and PW3 on 4.6.1998 and while so, he got information that sales Crl. Appeal 1124 of 2004 -:4:- of arrack was going on at the premises of the toddy shop bearing No.T.S.81 and thereby they reached the spot. On reaching there they could see the appellant standing with a plastic cover containing arrack, At the eastern side of the well situated at the compound of the toddy shop. On seeing them, the appellant tried to move away. He was chased, and intercepted. On inspecting the sack which was present with the appellant, it could be traced out that 60 packets each containing 150 ml of arrack were there. The appellant was placed under arrest and the entire arrack contained in all the plastic packets were transferred to a can of 10 litre capacity, from which a sample of 350 ml was drawn in a 375 ml bottle. The empty covers and the contraband were seized through Ext.P1 mahazar. He identified the can as MO1 and the sack as well as the empty plastic bags as MO2 series. He registered Crime No.13 of 1998 against the appellant through Ext.P2 FIR. According to him, he produced the accused along with the contraband before court. Due to paucity of space at the property room of the court the contraband was returned and thereby the same was again Crl. Appeal 1124 of 2004 -:5:- produced before court on 29.6.1998 through Ext.P3 property list. Requisition for chemical analysis was filed and Ext.P4 certificate of chemical analysis was obtained. Even though PW1 has clearly stated that the contraband was also produced before court along with the accused, the contraband was returned to him for proper custody on the ground of paucity of space at the property room of the court, the same has not been challenged in cross examination. Therefore, presently there is no meaning in contending that there was delay in producing the contraband before court. No questions regarding the custody of the contraband was also put to PW4 in cross examination. 7. PW2, who was on GD charge Parippally Police Station on 4.6.1998, had also participated along with PW4 and PW3 in the patrol duty. He also corroborated the versions of PW4 in all material particulars. PW3, who was the other police constable present along with PW2 and PW4, also has corroborated the versions of PWs.3 and 4 in all material particulars. PWs2, 3 and 4 have clearly identified the appellant as well as the material objects. PW5 Sub Crl. Appeal 1124 of 2004 -:6:- Inspector of Parippally took over the investigation on 14.8.1998. He filed Ext.P5 report before court showing the full name and address of all the accused. 8. The fact that PW1 who was the independent witness cited by the prosecution has turned hostile to the prosecution, is of no consequence at all as far as the prosecution case is concerned. When there are consistent versions from PWs2 to 4 regarding the occurrence, there is absolutely nothing to disbelieve their versions. There is no rule that witnesses who are police officers cannot be believed. The seizure, taking of sample, the production of the accused as well as the contraband before court etc. clearly stand proved. Ext.P4 certificate of chemical analysis shows that the sample was not at all tampered with, whereas the seal was found intact and it tallied with the sample seal. The sample, on analysis, was found containing 28.56% by volume of ethyl alcohol. The consist versions of PWs.2 to 4 reveal that the seizure was effected while the appellant was engaged in the sale of arrack at the compound of the toddy shop. From all the evidence Crl. Appeal 1124 of 2004 -:7:- discussed above, 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 sentence imposed by the court below is excessive. In _**Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC)**_ , it was held 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. Appeal 1124 of 2004 -:8:- _further reduce the sentence in default of payment of fine from six months to fifteen days.”_ ## It was further 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 countless possible variables in the_ Crl. Appeal 1124 of 2004 -:9:- _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. Relying on the dictum in _**Sasikumar** (supra),_ I am of the view that the sentence imposed by the court below is exorbitant and the same is liable to be reduced. I am of the view that a sentence of simple imprisonment for three months and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for two months, will meet the ends of justice in this case. In the result, this appeal is allowed in part by modifying the sentence as follows: The appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for two Crl. Appeal 1124 of 2004 -:10:- months. It is made clear that the appellant is entitled to set off, of the period of detention already undergone by him 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**