Mubarak v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935 CRL.A.No. 460 of 2005 (A) ------------------------------------- AGAINST THE ORDER/JUDGMENT IN SC 332/2003 of ADDL. SESSIONS COURT (ADHOC-II), PALAKKAD DATED 11-02-2005 APPELLANT/2ND ACCUSED: -------------------------------------- MUBARAK, AGED 22 YEARS, S/O.ABDUPPA, KUNNIPARAMBIL VEEDU, ATHANIKKAL, CHOORAKKODE, VALLAPUZHA VILLAGE, OTTAPALAM TALUK. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT/COMPLAINANT: ---------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY THE PUBLIC PROSECUTOR SMT. SHEEBA M.T. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2013, ALONG WITH CRL.A. 461/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## B. KEMAL PASHA, J ------------------------------------ Crl.A.Nos. 460 & 461 of 2005 ------------------------------------------Dated this the 16[th] day of August, 2013 ## J U D G M E N T A1 and A2 in S.C.No.332 of 2003 of the Additional Sessions Court (Adhoc-II), Palakkad, who stand convicted under Section 55 (a) of the Abkari Act, sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `1,00,000/- each, in default, to undergo simple imprisonment for six more months each, have come up in appeals. The 2[nd] accused is the appellant in Crl.A.No.460 of 2005 and the 1[st] accused is the appellant in Crl.A.No.461 of 2005. 2. The prosecution case is that on 01.12.2002 at 10.15 pm, the appellants were found sitting at the rear seat of an autorickshaw bearing registration No.KL-9-E 2515, and that they were found in possession of 8 litres of arrack in a plastic can of 10 litre capacity. The autorickshaw was seen surrounded by the local public. A3 was found on the driving seat. It is alleged that the can containing arrack was found beneath the dhoti of Crl.A.Nos. 460 & 461 of 2005 2 the first accused. 3. PW5 Sub Inspector of Police, Shornur, who got information that the accused had brought arrack by an autorickshaw bearing registration No.KL-9-E 2515 for sales and the local public had detained the autorickshaw on the road, he along with police party rushed to the spot and reached there at 10.30 pm. On finding that the can contained arrack, the accused were placed under arrest at 10.45 p.m. Three samples in 375 ml bottles were drawn from the contraband and the same were labelled and sealed. The contraband was seized through Exhibit P1 mahazar. He reached the police station along with the accused, the material objects and the records, and registered the crime through Exhibit P7 First Information Report. PW7 Additional Sub Inspector of Police, Shornur took over the investigation on 02.12.2002 and prepared Exhibit P2 scene mahazar. On getting Exhibit P11 certificate of Chemical Analysis, the Crl.A.Nos. 460 & 461 of 2005 3 complaint was filed. 4. On the side of the prosecution, PW1 to PW7 were examined and Exhibits P1 to P11 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellants guilty of the offence punishable under Section 55 (a) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid. A3 was found not guilty and he was acquitted. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. The learned counsel for the appellants argued that the appellants were not properly identified by any of the witnesses before the court below. It has also been pointed out that PW1 to PW3, who were cited as independent witnesses have turned hostile to the prosecution and did not support the prosecution case. It was argued that there is no independent corroboration in respect of the evidence of Crl.A.Nos. 460 & 461 of 2005 4 PWs 5 and 6. It has been further argued that even according to the case of the prosecution, there was nothing to connect the 2[nd] accused with any offence. Lastly, it was argued that there is no evidence to show as to what was the sample seal used by PW5. 6. According to PW5, while he was on patrol duty, he got information at 10.00 p.m., on 01.12.2002, that the accused had brought arrack by an autorickshaw bearing registration No.KL-9-E 2515 and attempted to sell the same and that the local public who became aware of it had detained the autorickshaw. He along with Police party reached the spot and found A1 and A2 sitting at the rear seat and A3 sitting at the driving seat of the autorickshaw. The said aspect has not been challenged in cross-examination and therefore, there is no meaning in contending that PW5 did not identify the accused before the court below. 7. According to PW5, 10 litre can was found Crl.A.Nos. 460 & 461 of 2005 5 beneath the dhoti worn by the first accused. The can on verification, was found containing 8 litres of arrack. The 2[nd] accused was also found sitting near the 1[st] accused. All the accused were placed under arrest and three samples of 375 ml each were drawn from the contraband. Those samples were lebelled and his signature, the signatures of the witnesses and the accused were obtained on the label. The contraband was seized through Exhibit P1 mahazar. According to him he reached the Police Station along with the accused, the material objects and the records and registered the crime. He has clearly deposed that the seal affixed was the SHO seal. He identified the can as MO1. Exhibit P4 was the arrest memo for the arrest of A1, Exhibit P5 was the arrest memo for the arrest of A2 and Exhibit P6 was the arrest memo for the arrest of A3. The crime was registered through Exhibit P7 First Information Report. Exhibit P8 remand report was Crl.A.Nos. 460 & 461 of 2005 6 prepared and the accused were produced before court. According to him, the impression of the specimen seal was affixed in Exhibit P10. The contraband as well as the samples were produced before court through Exhibit P9. He admitted that the contraband and the samples reached the court through Exhibit P9 on 03.12.2002. It is true that Exhibit P9 is dated 02.12.2002, whereas, it was received by the court on 03.12.2002 only. 8. PW6 was a Police Constable attached to the Shornur Police Station. He was also present along with PW5 at the time of seizure. It seems that he has corroborated the versions of PW5 in all material particulars. As usual in an Abkari case, the independent witnesses cited by the prosecution as PWs 1 and 3 to prove the occurrence, expecting independent corroboration, have turned hostile to the prosecution and did not support the prosecution case regarding the seizure. At the same time, they have admitted there Crl.A.Nos. 460 & 461 of 2005 7 signatures in Exhibit P1. PW2 was the attester of Exhibit P2. He admitted his signature in Exhibit P2. At the same time, he has stated in his evidence that he did not know the contents of Exhibit P2. 9. PW7 took over the investigation on 02.12.2002. According to him, he went to the scene of occurrence at 09.00 a.m. on that day and prepared Exhibit P2 scene mahazar. Exhibit P10 is the forwarding note and Exhibit P11 is the certificate of Chemical Analysis, which shows that the seals of all the three samples were intact and were tallying with the sample seal provided. It has been revealed that Item No.1 contained 36.84 %, Item No.2 contained 36.90 % and Item No.3 contained 36.90 % by volumes of Ethyl Alcohol. On going through the entire evidence and records, I do not find any illegality or irregularity in the seizure, sampling or investigation. I do not find anything to interfere with the conviction entered by the court below. Lastly, the learned counsel Crl.A.Nos. 460 & 461 of 2005 8 for the appellants by relying on the decision in Sasikumar and another v. State of Kerala (2012 KHC 4713)(SC), has sought for maximum leniency in the question of sentence by pointing out that the contraband involved in this case was of meagre quantity when considering that there were two persons who were held responsible for the possession of the contraband. 10. In the decision noted supra 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.Nos. 460 & 461 of 2005 9 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.Nos. 460 & 461 of 2005 10 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. Considering the facts and circumstances of the case and the meagre quantity of the contraband involved, I am of the view that a sentence of simple imprisonment for three months each and to pay a fine of `1,00,000/- each, in default, to undergo simple Crl.A.Nos. 460 & 461 of 2005 11 imprisonment for one more month each, 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 appellants are sentenced to undergo simple imprisonment for three months each and to pay a fine of `1,00,000/- each, in default, to undergo simple imprisonment for one more month each. The appellants are entitled to set off, of the period undergone by them in custody in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C. ## Sd/- B. KEMAL PASHA, JUDGE. // True Copy // P.A. To Judge DSV/-