Parapurath Vasu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935 Crl.Rev.Pet.No. 1269 of 2003 ( ) --------------------------------- AGAINST THE JUDGMENT IN CRA 367/1997 of ADDL. DISTRICT COURT (ADHOC), THALASSERY DATED 23-11-2002 AGAINST THE ORDER IN CC 323/1996 of J.M.F.C.,KUTHUPARAMBA DATED 07-11-1997 REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------ PARAPURATH VASU, S/O.KUNHAMBU, SIVAPURAM AMSOM MALOOR DESOM BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA ## RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MATTANNUR \ THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.SREEJITH V.S. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl.R.P. No.1269 of 2003 A ````````````````````````````````````````````````````````````` Dated this the 18[th] day of July, 2013 ## **O R D E R** ~ ~ ~ ~ ~ ~ Petitioner is the accused in C.C.No.323/1996 of the Judicial First Class Magistrate's Court, Kuthuparamba. He was convicted and sentenced by the learned Magistrate. Challenging the conviction and sentence, he preferred Criminal Appeal No.367/1997 before the Sessions Court, Thalassery. The learned Additional Sessions Judge allowed the appeal in part by maintaining the conviction under Section 55(a) of the Abkari Act; but by reducing the sentence. Presently, the petitioner stands sentenced to undergo simple imprisonment for 15 days and to pay a fine of ₹25,000/-, in default, to undergo simple imprisonment for three more months. 2. The prosecution case is that, on 12.01.1996 by Crl.R.P.1269/2003 : 2 : about 5.40 p.m., while PW1, Preventive Officer of Mattannur Excise Range, along with party, was on patrol duty, they could see the petitioner standing on a lane near Mattannur by holding MO1 plastic can, which, on examination, was found containing 2.5 litres of illicit arrack. The petitioner was placed under arrest, and samples were drawn. The contraband was seized through Ext.P1 mahazar. Along with the petitioner and the material objects, he reached the Excise Office and registered Ext.P2 occurrence report. The petitioner was enlarged on bail through Ext.P3 bail bond. PW5, Excise Inspector, Mattannur, who also saw the occurrence, filed the complaint on getting Ext.P5 certificate of chemical analysis. 3. The one and only point argued by the learned counsel for the petitioner is that, the offence, even if admitted, at the most, will come under Section 58 of the Abkari Act and not under Section 55(a). According to the learned counsel for the petitioner, there is no export, import, Crl.R.P.1269/2003 : 3 : transport or transit of the contraband and, therefore, Section 55(a) has no application at all. 4. PW1 has stated in evidence about the detection of the crime, the seizure of the contraband through Ext.P1 and the registration of the occurrence report. His evidence is fully corroborated by the evidence of PW2 Excise Guard, who was also present along with PW1 at the time of seizure. As usual, PWs 3 and 4, who are the signatories in Ext.P1, have turned hostile to the prosecution, even though they have admitted their signatures in Ext.P1. According to PW3, he has subscribed his signature, in the excise office. According to PW4, he subscribed his signature in a blank paper as demanded by the excise men. 5. Ext.P4 is the copy of the requisition forwarded by PW5 for the chemical analysis of the sample. Ext.P5 is the certificate of chemical analysis, which reveals that the sample contained 23.92% of volume of Ethyl Alcohol. It is evident that the contraband involved is illicit arrack. Crl.R.P.1269/2003 : 4 : 6. Regarding the arguments forwarded by the learned counsel for the petitioner, it has to be noted that, if the seizure was not from the possession of the accused at the time of any export, import, transport or transit, of course, Section 55(a) will have no application. If it is seized from the possession of the accused and it is shown that he was in such possession with the knowledge that it was unlawfully manufactured, then Section 58 will come into play. It is trite law that if it is shown that the seizure was from the possession of the accused in the course of any export, import, transport or transit, it will clearly constitute the offence under Section 55(a) of the Abkari Act. Here, there is no meaning in contending that the seizure was not during the transport or transit. Admittedly, the seizure was not from the house of the accused or from any place that belongs to the accused. The seizure was effected while the petitioner was present at a public pathway with MO1 can. Matters being so, the offence will clearly come within the purview of Crl.R.P.1269/2003 : 5 : Section 55(a) of the Abkari Act. I do not find anything to interfere with the concurrent findings of fact entered by both the courts below. 7. At the same time, the learned counsel for the petitioner has pointed out that the petitioner is hailing from very poor circumstances. The quantity of the contraband involved is 2.5 litres of arrack. An identical situation was dealt with by the Apex Court in _**Sasikumar and another v. State of Kerala [2012 KHC 4713 (SC)]**_ , wherein 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._ Crl.R.P.1269/2003 : 6 : _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 ₹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_ Crl.R.P.1269/2003 : 7 : _position to pay the fine of ₹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.”_ 8. In such a case, the courts shall have absolute freedom in the matter of discretion in imposing default sentence. Here, the appellate court has reduced the substantive sentence of imprisonment to simple imprisonment for 15 days. At the same time, the default sentence imposed is simple imprisonment for three months in case of non payment of fine of ₹25,000/-. By applying the Crl.R.P.1269/2003 : 8 : principles laid down by the Apex Court in _**Sasikumar** 's_ case ( _supra_ ), I am of the view that the default sentence can be reduced to one month. 9. In the result, this Crl.R.P. is allowed in part by maintaining the conviction and modifying the sentence as follows:- The petitioner shall undergo simple imprisonment for 15 days and to pay a fine of ₹25,000/-, in default, to undergo simple imprisonment for one month. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/18/07 _// True Copy //_ _PA to Judge_