Janardhanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935 CRL.A.No. 175 of 2005 (C) -------------------------- AGAINST THE JUDGMENT IN SC 569/2004 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 27-12-2004 APPELLANT / ACCUSED: ---------------------------------------- JANARDHANAN, AGED 28 YEARS, S/O. KRISHNA NAIK, PALLANJI, ADOOR VILLAGE KASARAGOD. BY ADVS.SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT/COMPLAINANT : -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R BY PUBLIC PROSECUTOR SRI.SREEJITH.V.S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.A.No. 175 of 2005 ## **-----------------------------------** Dated this the 26[th] day of August, 2013 ## **J U D G M E N T** The accused in Sessions Case No.569/2004 of the Additional Sessions Court (Adhoc-I), Kasaragod, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for 9 months and to pay a fine of `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 08.05.2003 at 6.00 pm, the appellant was found in possession of 4 litres of arrack in contravention of the provisions of the Abkari Act, near the southern end of the suspension bridge across a stream at Pallangi, Adhur village, and consequently, he was arrested. 3. PW3, Preventive Officer, Badiadka Excise Range, while on patrol duty along with the excise party at 6.00 pm on 08.05.2003, could see the appellant coming with a can containing 4 litres of arrack and consequently he was placed under arrest. A sample of 300ml was drawn from the Crl.A.No. 175 of 2005 2 contraband. The contraband was seized through Ext.P1 mahazar. The appellant along with the contraband and the sample, and the records were produced before PW6, Excise Inspector, Badiadka at 8.10 pm on 08.05.2003. He registered O.R.No.20/2003 through Ext.P3 occurrence report. He prepared Ext.P4 property list, and the properties were sent to the court on 09.05.2003. Forwarding note was also given, the copy of which is Ext.P5. On obtaining Ext.P6 certificate of chemical analysis, the complaint was filed. 4. On the side of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P9 were marked. MO1 was identified. On the side of the accused, Exts.D1 and D2 were marked. 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 and the learned Public Prosecutor. The learned counsel for the appellant has argued that there is no sufficient evidence to connect the appellant with the crime and therefore, the conviction and sentence passed by the court below are liable Crl.A.No. 175 of 2005 3 to be set aside. 6. PW3 has proved the case of the prosecution. He has proved the seizure of the contraband contained in MO1, and the arrest of the appellant. A sample of 300ml was drawn in the presence of the appellant. The contraband was seized through Ext.P1. He produced the appellant along with the material objects and records before PW6, Excise Inspector. PW5 was the Excise guard who was present along with PW3 at the time of seizure. He corroborated the versions of PW3, in all material particulars. 7. PW4 was the Village Assistant, who prepared Ext.P2 plan in respect of the scene of occurrence. PW6 was the Excise Inspector, Badiadka, who has stated in evidence that the appellant along with the contraband, sample and records were produced before him at 8.10 p.m on 08.05.2003 by PW3. He registered O.R.No.20/2003 through Ext.P3 occurrence report. He prepared Ext.P4 property list and sent the material objects on the court on 09.05.2003. He filed the forwarding note, the copy of which is marked as Ext.P5, for subjecting the sample to chemical analysis. Ext.P6 is the report of chemical Crl.A.No. 175 of 2005 4 analysis, which shows that the sample contained 29.85% by volume of Ethyl Alcohol. 8. On going through the evidence discussed above, it has clearly come out that the prosecution has made out an offence under Section 55(a) of the Abkari Act on the part of the appellant. There is absolutely nothing to interfere with the conviction passed by the court below. 9. The learned counsel for the appellant has argued that the court below has failed to take note of the meagre quantity of the contraband involved in this case, while imposing sentence. According to the prosecution, the contraband involved in this case is only 4 litres of arrack. In the decision 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 Crl.A.No. 175 of 2005 5 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.” ## 10. 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 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.” Crl.A.No. 175 of 2005 6 11. By applying the principles enunciated by the Apex Court in the decision noted supra, the facts and circumstances of this case, and the meagre quantity of the contraband involved in this case, I am of the view that a sentence of simple imprisonment for 2 months and to pay a fine of `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 Crl.Appeal is allowed in part by maintaining the conviction and modifying the sentence as simple imprisonment for 2 months and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more month. It is made clear that 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 of the Code of Criminal Procedure. Sd/- **B. KEMAL PASHA, JUDGE** AV /True Copy/ P.A to Judge Crl.A.No. 175 of 2005 7