Kunjayyappan Pillai @ Ambili v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935 CRL.A.No. 483 of 2005 ( ) ---------------------------------- AGAINST THE JUDGMENT IN SC 1686/2004 of ADDITIONAL SESSIONS COURT (ADHOCIII), KOLLAM DATED 04-03-2005 AGAINST THE ORDER/JUDGMENT IN CP 83/2004 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-II, KOLLAM APPELLANT/ACCUSED NO.1:: --------------------------------------- KUNJAYYAPPAN PILLAI @ AMBILI, S/O. NARAYANA PILLAI, PUTHUVEEDU, NADUVILAKKARA MURI, THRIKKOVILVATTAM, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT/COMPLAINANT:: ------------------------------------------ STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, CHATHANNOOR EXCISE RANGE, (CRIME NO.10/02) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## B. KEMAL PASHA, J -----------------------------------Crl.A.No. 483 of 2005 ----------------------------------Dated this the 19[th] day of July, 2013 ## J U D G M E N T Appellant is the first accused in S.C.No.1686 of 2004 of the Additional Sessions Court (Adhoc-III), Kollam, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default, to undergo rigorous imprisonment for six more months. 2. The prosecution case is that on 27.05.2002 at 5.00 p.m., he was found in possession of 1½ litres of coloured arrack in a plastic bottle at Naduvilakkara Muri. PW1, the Inspector of Excise Special Squad, Kollam and party intercepted the appellant. PW1 placed the appellant under arrest and seized the contraband. Sample was drawn and Exhibit P1 mahazar was prepared. He took the appellant and the material objects to the Excise Office, Chathannur and the matter was entrusted to PW3. PW3 registered Exhibit P4 occurrence Crl.A.No. 483 of 2005 2 report. The material objects were produced before court through Exhibit P5 property list. The accused was produced before court through Exhibit P6 remand application. Forwarding note was filed and the sample was sent for chemical analysis and obtained Exhibit P8 certificate of chemical analysis. PW8, the Excise Inspector, Chathannur completed the investigation and filed the complaint. The 2[nd] accused was arraigned on the version of the appellant that the contraband was entrusted to him by A2 for sales. 3. On the side of the prosecution, PWs 1 to 8 were examined and Exhibits P1 to P8 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The 2[nd] accused was acquitted. 4. The learned counsel for the appellant has argued that there is discrepancy regarding the time of arrest of Crl.A.No. 483 of 2005 3 the appellant and also the time at which the information was allegedly received. It is also argued that there is nothing to show that the contraband involved in this case is coloured arrack. It is further argued that there is no sufficient evidence to connect the appellant with the offence. 5. According to PW1, on 27.05.2002 at 5.00 p.m. while he along with the Excise Party were on patrol duty, he got information that the sales of coloured arrack was going at the place of occurrence in this case, thereby he along with the party proceeded to the spot and saw the appellant coming with a plastic bottle containing 1½ litres of coloured arrack. He identified the plastic bottle as MO1. He seized the contraband through Exhibit P1 mahazar and placed the appellant under arrest through Exhibit P2 arrest memo. Exhibit P3 notice of arrest was served on the relative of the appellant. He took the appellant, material objects and records to the Excise Office, Chathannur and entrusted the matter with PW3, Crl.A.No. 483 of 2005 4 the Preventive Officer who was holding the charge of the Excise Inspector. It seems that the appellant was arrested at 4.55 p.m. The matter has been clearly explained by PW1 in cross-examination. According to him, the information was received at 4.30 p.m. and not at 5.00 p.m. It seems that the entire proceedings were taken place at about 5.00 p.m. PW2, the preventive officer, was also present along with PW1. PW2, has in his evidence, corroborated the evidence of PW1 in all material particulars. PW3 has stated in evidence that at 8.30 p.m. on 27.05.2002, he received the appellant and material objects along with the records in this case from PW1. He prepared Exhibit P4 occurrence report. The material objects were produced before court through Exhibit P5 property list. He produced the appellant before court through Exhibit P6 remand application. The sample along with the forwarding note for subjecting it to chemical analysis were produced before court. Exhibit P7 is the copy of the forwarding note. Crl.A.No. 483 of 2005 5 6. As usual in an Abkari case, PWs 4 and 5, who were cited as occurrence witnesses and as attestors to Exhibit P1 mahazar, turned hostile to the prosecution. At the same time, they have admitted their signatures in Exhibit P1. According to PW4, in cross-examination, he had affixed his signature in a blank paper. According to PW5, while he was working at the paddy field, he affixed his signature in Exhibit P1. It has to be noted that the place of occurrence is the side of paddy field. 7. PW6, PW7 and PW8 were Excise Inspectors of the Chathannur Excise Range, who conducted the investigation. Exhibit P8 is the certificate of chemical analysis which shows that the sample contained 30.51 % by volume of Ethyl Alcohol. 8. Even though, the learned counsel for the appellant has argued that the contraband involved can only be treated as Indian Made Foreign Liquor, the appellant has no case that he was carrying any Indian Made Foreign Liquor. The percentage of Alcohol in the Crl.A.No. 483 of 2005 6 sample also shows that it is not Indian Made Foreign Liquor. It is evident that the contraband involved is coloured arrack. Even though the learned counsel for the appellant has argued that the appellant was taken away by the Excise men from his house, the appellant had no such case when examined under Section 313 of the Code of Criminal Procedure. The evidence adduced by the prosecution is more than enough to find the guilt of the appellant for the offence under Section 55(a) of the Abkari Act. The court below has carefully appreciated the evidence in its correct perspective and entered the conviction. The conviction entered by the court below is not liable to be interfered with in any manner. The learned counsel for the appellant has sought for the maximum leniency in the question of sentence by pointing out that the quantity of the contraband involved is just 1½ litres and also by pointing out that even the prosecution allegation is that he was entrusted with the contraband by A2 for sales. Crl.A.No. 483 of 2005 7 9. 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 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: Crl.A.No. 483 of 2005 8 “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 Crl.A.No. 483 of 2005 9 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 poor circumstances in which the appellant is placed, I am satisfied that the substantive sentence as well as the default sentence entered by the court below are excessive and the same require modification. I am of the view that a sentence of simple imprisonment for three months and a fine of `1,00,000/-, in default, to undergo simple imprisonment for 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 3 (three) months and a fine of 10 Crl.A.No. 483 of 2005 `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 of detention, if any, undergone by the appellant in connection with the investigation, inquiry and trial of the is case under Section 428 Cr.P.C. Sd/- B. KEMAL PASHA, JUDGE. // True Copy // P.A. To Judge DSV/-