Narayanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935 CRL.A.No. 1256 of 2004 (C) --------------------------- SC 445/2002 of ADDL.DISTRICT & SESSIONS JUDGE FAST TRACK (ADHOC-II), KOZHIKODE APPELLANT/ACCUSED: -------------------- NARAYANAN, S/O.KUNHIKANARAN. BY ADV. SRI.NIRMAL SACHEENDRAN RESPONDENT/COMPLAINANT: ---------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-072013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl. Appeal No. 1256 of 2004 **-----------------------------------** Dated this the 22[nd ] day of July, 2013 ## **J U D G M E N T** The accused in S.C.No.445 of 2002 of the Additional Sessions Court(Adhoc II), Kozhikode, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for six months, has come up in appeal. 2. The prosecution case is that on 30.6.2000 at 1.30 p.m. the appellant was found coming through a road at Pookkad, Thuvvakode Desom, Chemanchery amsom, Quilandy, by holding a plastic can. He was intercepted by PW1, Preventive Officer of Excise Range Office, Quilandy and the can was examined. The can was found containing 5 litres of illicit arrack. The appellant was placed under arrest and sample was drawn. The contraband was seized through Ext.P1 mahazar. The appellant along with material objects Crl. Appeal 1256 of 2004 -:2:- and records were produced before PW3, Excise Inspector. PW3 registered Ext.P4 occurrence report and produced the accused before court through Ext.P5 remand report. He produced the material objects through Ext.P6 property list. Forwarding note was given for subjecting the sample to chemical analysis. Ext.P7 is the copy of the forwarding note which contains the specimen seal of PW3. On obtaining Ext.P8 certificate of chemical analysis, the final report was filed by G. Mohanan who was the Excise Inspector at that time. 3. On the side of the prosecution PWs 1 to 3 were examined, Exts.P1 to P8 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. 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 offence alleged against Crl. Appeal 1256 of 2004 -:3:- him. It is also argued that there is no evidence to show that the appellant was in conscious possession of the contraband and therefore, a conviction under Section 58 of the Abkari Act is not sustainable. 5. PW1, Preventive Officer has proved his case. According to him he examined MO1 can and found that it was containing 5 litres of illicit arrack, consequently he placed the appellant under arrest. Sample was drawn and the contraband was seized through Ext.P1 mahazar. Ext.P2 is the arrest memo. He produced the appellant along with material objects and records before PW3, Excise Inspector. 6. PW2 is an independent witness who has also corroborated the versions of PW1 regarding the incident. In cross-examination he admitted that he was the joint convener of the Anti-liquor Movement at the locality. According to the learned counsel for the appellant, PW2 is an active worker of the Anti-liquor Movement. He cannot be categorized as an independent witness. At the same, the appellant has no case that PW2 has any enmity towards him. Even if PW2 is a leader of the Anti-liquor Movement, he Crl. Appeal 1256 of 2004 -:4:- will never try to implicate a person falsely in a case of seizure of arrack. There is no meaning in contending that PW2 is not an independent witness. 7. PW3 has also corroborated the versions of PWs.1 and 2. According to him, the appellant as well as the material objects were produced before him. Ext.P8 certificate of chemical analysis proves that the sample contained 42.17% by volume of ethyl alcohol. According to the appellant, when examined under Section 313 Cr.P.C., while he was sitting at his house, he saw PW1, PW2 and others engaged in a search for illicit liquor in his neighbouring property and in such search, they recovered the arrack in question from the said property which was concealed by somebody. The said contentions of the appellant itself reveal that he was aware that arrack was seized in this case. Even though the arrack was seized while it was being transported by the appellant, the court below has entered the conviction under Section 58 of the Abkari Act. In fact, the offence would have been one under Section 58(a) of the Abkari Act. In the sentence to be imposed, Crl. Appeal 1256 of 2004 -:5:- there is no difference in between both the provisions. 8. On going through the entire evidence and the records in this case, I am satisfied that the conviction entered by the court below does not suffer from any illegality or irregularity and therefore, the same is not liable to be interfered with. At the same time, the learned counsel for the appellant has pointed out that the appellant is hailing from poor circumstances and the quantity of arrack involved is only 5 litres. The learned counsel for the appellant has canvassed for the maximum leniency by this Court in the question of sentence. 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_ Crl. Appeal 1256 of 2004 -:6:- _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: _“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_ Crl. Appeal 1256 of 2004 -:7:- _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.”_ 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 a sentence of simple imprisonment for six Crl. Appeal 1256 of 2004 -:8:- months and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for two more months, will meet the ends of justice in this case. 10. 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 six months and to pay a fine of Rs.1,00,000/-(Rupees One Lakh only), in default, to undergo simple imprisonment for two more months. It is made clear that the appellant is entitled to set off, of the period already undergone by him 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.S. to Judge_ ul/-