Malathy v. Excise Inspector, Adoor Range and 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. 444 of 2005 (C) -------------------------AGAINST THE JUDGMENT IN SC 151/2003 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 05-02-2005 APPELLANT/ACCUESED:: -------------------------------------------- MALATHY, D/O. NANU, THUNDIL VEEDU, MUDIYOORKONAM KARA, PANDALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.K.S.SIVA KUMAR SRI.SALIM V.S. SMT.REJITHA RAJAN RESPONDENTS/COMPLAINANTS:: ------------------------------------------------------ 1. THE EXCISE INSPECTOR, ADOOR RANGE. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T 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. 444 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.151/2003 of the Additional Sessions Court (Adhoc-II), Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for 2 years and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more year, has come up in appeal. 2. The prosecution case is that on 15.10.1999 at 11.30 am, the appellant was found carrying 2 litres of arrack in a 5 litre can, through the panchayat road starting from a distance of 50 metres towards west from Arthimukku in Pandalam-Mavelikkara road. PW1, Preventive Officer of Excise, Adoor Excise Range, intercepted the appellant, seized the contraband through Ext.P2 seizure mahazar, and placed the appellant under arrest through Ext.P1 arrest memo. A sample of 180ml was drawn from the contraband. The appellant along with the contraband, sample and records were produced before PW4, Assistant Excise Inspector, Adoor. PW4 registered Ext.P4 occurrence report. Crl.A.No. 444 of 2005 2 The appellant along with the contraband, sample, and records were produced before court on the same itself, through Ext.P5 remand application and Ext.P6 property list. On obtaining Ext.P7 certificate of chemical analysis, PW7 Excise Inspector, Adoor, filed the complaint. 3. On the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P8 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted her thereunder, and sentenced her as aforesaid. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that the evidence regarding the scene of occurrence by PW1 and PW5 are contradictory and therefore, their evidence cannot be relied on. It is also argued that the requisition or forwarding note has not been marked and therefore, there is nothing to show that Ext.P7 certificate of chemical analysis is, in respect of the sample allegedly drawn from the contraband involved in this case. Crl.A.No. 444 of 2005 3 It is also argued that there is no sufficient evidence to connect the appellant with the crime. 5. PW1 has stated that they could see the appellant coming with a can containing arrack, at the panchayat road situated at 50 metres away towards west from the Arthimukku junction. The panchayat road joints the main road, and the appellant was placed under arrest just about at the junction, where the punchayat road joints the main road. Almost similar is the version given by PW5, who had accompanied PW1 at the time of seizure. The appellant was placed under arrest and the contraband was seized through Ext.P2. A sample of 180ml was drawn. The learned counsel for the appellant has pointed out that there is discrepancy in the evidence of PWs.1 and 5 regarding the capacity of the bottle, in which the sample was drawn. According to PW1, it was drawn in a bottle having capacity of 180ml, whereas, according to PW5 the sample of 180ml was drawn in a bottle of 200ml capacity. Such a minor discrepancy is of no consequence at all. It is the consistent case of PWs.1 and 5 that the sample of 180 ml was drawn. Capacity of the bottle Crl.A.No. 444 of 2005 4 in which it was collected does not assume any importance at all. The total quantity of the contraband involved is proved to be 2 litres, as is evident from the evidence of PWs.1 and 5. It is true that a meagre quantity of contraband was seized. 6. As usual, PW2, who was cited as independent occurrence witness has turned hostile to the prosecution and did not support the prosecution case. At the same time, PW3, who was cited as an occurrence witness, has supported the prosecution in his chief examination, by stating that he saw the Excise officers apprehending the appellant at the panchayat road situated about 50 metres away towards west from Arthimukku. At the same time, he has denied his signature in Ext.P2 mahazar. In cross examination, he has categorically made a version that the appellant was taken away from her house by the Excise people. The evidence of PW1 stands fully corroborated by the evidence of PW5. In a way their evidence has been corroborated by the versions of PW3 in the chief examination. The versions of PWs.1 and 2 are seen further corroborated by the contents of Ext.P2 Crl.A.No. 444 of 2005 5 mahazar. 7. Ext.P6 property list clearly shows that the contraband as well as the sample were produced before court. Ext.P5 remand application clearly reveals that the appellant along with relevant records namely, mahazar, arrest memo, occurrence report, chemical requisition and list of thondi materials along with the thondi articles and the sample bottle which were sealed and labelled, were produced before court. There is no reason to disbelieve the contents of Ext.P5 remand application. Moreover, PW1 has clearly given a version that the requisition was also filed. It is true that the requisition letter has not been marked in evidence. At the same time, Ext.P6 property list clearly reveals the production of the sample and the contraband on the date of incident itself at court, when the appellant was produced. Matters being so, there is nothing to suspect whether Ext.P7 pertains to the sample drawn from the contraband, which was seized from the possession of the appellant. Ext.P7 reveals that the seal on the sample bottle was intact and found tallying with the sample seal provided. Crl.A.No. 444 of 2005 6 It reveals that the sample contained 43.22% by volume of Ethyl Alcohol. 8. From the evidence and records in this case, it has clearly come out that the appellant has committed the offence punishable under Section 8(2) of the Abkari Act. Matters being so, there is absolutely nothing to interfere with the conviction entered by the court below. 9. Regarding sentence, the learned counsel for the appellant has produced a medical certificate of the appellant, which shows that she is suffering from acute hypertension, diabetes as well as other diseases. It has been pointed out that she is presently aged 72. According to the learned counsel for the appellant, the court below has not taken note of the meagre quantity of the contraband in this case, at the time of imposing sentence. According to the learned counsel for the appellant, sentence imposed by the court below is highly excessive. It has been pointed out that the appellant was arrested on 15.10.1999, and she had undergone detention for the period up to 10.11.1999. Considering the serious ailments of the appellant, who is a Crl.A.No. 444 of 2005 7 old woman, I am of the view that the substantive sentence of imprisonment can be limited to the period already undergone by the appellant in custody in connection with the investigation, inquiry and trial of this case. The court below has failed to consider the meagre quantity of the contraband allegedly seized from the appellant. In the decision 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.” ## 10. It was held in paragraph 13 as follows: Crl.A.No. 444 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 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. Going by the dictum laid down by the Apex Court in the decision noted supra, the small quantity of contraband involved, the old age of the appellant, and also the fact that the appellant is a old woman, I am of the view that along 9 Crl.A.No. 444 of 2005 with the substantive sentence as noted above, a sentence of fine of `1,00,000/-, in default, to undergo simple imprisonment for 15 days more, 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 follows : The appellant is sentenced to undergo simple imprisonment for the period already undergone by her in detention in connection with the investigation and inquiry of the case as noted above and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for 15 days more. Sd/- **B. KEMAL PASHA, JUDGE** AV /True Copy/ P.A to Judge