Saraswathy v. State of Kerala and The Excise Inspector, Adoor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **CRL.A.No. 428 of 2005 (A)** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 84/2003 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 18-02-2005** **APPELLANT(S)/ACCUSED:** **----------------------------------------** **SMT.SARASWATHY, KALALAYAM VEEDU,** **ELAMPALLICKAL MURI, PALLICKAL VILLAGE, ADOOR TALUK.** **BY ADVS.SRI.S.HARIKRISHNAN** **SRI.C.UNNIKRISHNAN (KOLLAM)** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THE EXCISE INSPECTOR, ADOOR.** ## **R1 BY PUBLIC PROSECUTOR SMT. SHEEBA M.T.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B. KEMAL PASHA, J** **------------------------------------** Crl. Appeal No. 428 of 2005 **-----------------------------------** Dated this the 29[th ] day of August, 2013 ## **J U D G M E N T** The accused in S.C.No.84 of 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 one year and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for one more year, has come up in appeal. 2. The prosecution case is that on 19.12.1999 at 12.10 p.m., the appellant was found in possession of three litres of arrack in a can of 5 litre's capacity, at the Payyanalloor - Kollaikkal road, in front of Konathu Marthoma Church in Elampallil muri in Pallikkal Village. Crl. Appeal 428 of 2005 -:2:- 3. The crime was detected by PW2 who was the Assistant Excise Inspector, Adoor Excise Range, while he, along with the Excise party, were engaged on patrol duty. MO1 can containing arrack was seized through Ext.P1 mahazar, and the appellant was placed under arrest through Ext.P2 arrest memo. Ext.P3 notice of arrest was served on the mother-in-law of the appellant. A sample of 180 ml was drawn from the contraband. He produced the appellant along with the contraband, the sample and the records before PW5, Excise Inspector, Adoor Excise Range. PW5 registered Ext.P5 occurrence report as O.R.No.113/99. He produced the appellant before court through Ext.P6 remand report. The material objects were produced before court through Ext.P7 property list. Requisition was given for subjecting the sample to chemical analysis. Ext.P8 certificate of chemical analysis received on analysis of the sample, revealed the presence of 47.81% by volume of ethyl alcohol in the sample. PW6 Excise Inspector of Adoor Excise Circle, conducted the investigation and filed the complaint. Crl. Appeal 428 of 2005 -:3:- 4. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P9 were marked. MO1 can was identified. On the side of the appellant, DW1 was examined. 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. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that the contraband involved in this case has not been properly identified as the contents of MO1 was not available at the time of trial; that any labels were not found on MO1 can at the time when it was identified as MO1 before the court below; and that the evidence adduced by the prosecution are not sufficient to connect the appellant with the crime. 6. PW2, Assistant Excise Inspector, Adoor has stated in evidence that on 19.12.1999 after 11 am, while he along with the excise party were on patrol duty, he could see the appellant coming with MO1 can near Konathu Marthoma Church, and on seeing the Excise party, the appellant tried Crl. Appeal 428 of 2005 -:4:- to move away. She was intercepted and the contents of the can was verified. On finding that the can contained three litres of arrack, the appellant was placed under arrest through Ext.P2 arrest memo. Ext.P3 intimation of arrest was served on the mother-in-law of the appellant. The contraband was seized through Ext.P1 mahazar. A sample of 180 ml was drawn from the contraband. PW2 has admitted that at the time of examination, MO1 can did not contain any arrack and that the can was in a damaged condition. It has come out that the label was not then available on MO1 and that the label which he had affixed on it had been lost, subsequent to its production before court. 7. PW1 was an excise guard of Adoor Excise Range, who was also present along with PW2 at the time of seizure. He has fully corroborated the versions of PW2 in all material particulars. As usual in an abkari case, PW2 and PW3, the two independent occurrence witnesses cited by the prosecution, have turned hostile to the prosecution and did not support the prosecution case, even though they admitted their signatures in Ext.P1 mahazar. According to Crl. Appeal 428 of 2005 -:5:- them, the appellant was taken into custody from her house. 8. PW5 was the Excise Range Inspector, Adoor, who has stated in evidence that PW2 had produced the appellant along with the contraband item, the sample and the records before him and thereby he registered O.R.No.113/99 through Ext.P5 occurrence report. The appellant was produced before court through Ext.P6 remand application. He produced the contraband and the sample before court through Ext.P7 property list. He has pointed out that in Ext.P7 it has been stated that both the items were sealed and labelled. Exts.P7 and P9 clearly reveal that both the thondy articles were sealed and labelled. It is true that by the time the case came up for trial, MO1 can became damaged and thereby its contents were lost. Merely because of the fact that the contents were lost, it cannot be said that the contraband was not identified. MO1 was identified as the can that was seized from the possession of the appellant, consistently by PW1 and PW2. PW5 has also identified it. Absence of a label at the time of examination by PWs.1, 2 and 5 was also clearly explained by them that it Crl. Appeal 428 of 2005 -:6:- was lost due to passage of time. 9. When examined under Section 313 Cr.P.C., the appellant had explained that while she along with her daughter were taking food at her house, three to four policemen came over there and enquired about her husband. When she told them that he was not there, she was asked to get into the jeep by stating that she would be released when her husband comes. She was taken away from there by stating that a warrant was pending against her. According to her, no contraband was taken from her possession. 10. DW1 was examined with a view to prove the defence version. According to him, on 19.12.1999 after 10,30 am, he saw the appellant while she was being arrested at her house. He saw the Excise people entering into the house of the appellant. When he enquired about it, he was told that a warrant was issued against the husband of the appellant. In cross-examination, he has admitted that he was residing more than 8 kms away from the house of the appellant, and it was for the first time that he happened Crl. Appeal 428 of 2005 -:7:- to be present near the house of the appellant. He does not know the house name of the appellant or the name of her husband. The versions given by DW1 in cross-examination clearly reveal that he is unworthy of credit. It seems that he had no occasion to see any such incident as narrated by him. 11. From the evidence discussed above, it has clearly come out that the prosecution could make out an offence under Section 8(2) of the Abkari Act as against the appellant. I do not find anything to interfere with the conviction passed by the court below. 12. Regarding the sentence, the learned counsel for the appellant has pointed out that the appellant is a woman who had no criminal antecedents. The contraband involved is a meager quantity of three litres of arrack. It has been pointed out that the court below has not taken note of the meager quantity of arrack while imposing sentence. 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 Crl. Appeal 428 of 2005 -:8:- ## 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: _“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_ Crl. Appeal 428 of 2005 -:9:- _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_ Crl. Appeal 428 of 2005 ## -:10:- _desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.”_ 13. It seems that the appellant was placed under arrest on 19.12.1999 and she was released on bail on 15.1.2000. Considering the facts and circumstances of the case, and the meager quantity of the contraband involved and the period undergone by the appellant in custody, I am of the view that the substantial sentence of imprisonment can be limited to the period already undergone by the appellant in custody, in connection with the investigation and inquiry in this case as noted above. Along with the same, a sentence of fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for 15 days more, will meet the ends of justice in this case and I order accordingly. In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows: The substantive sentence of imprisonment is limited to the period already undergone by the appellant in custody as Crl. Appeal 428 of 2005 -:11:- noted above, and the appellant is further sentenced to pay a fine of Rs.1,00,000/-(Rupees One Lakh only), in default, to undergo simple imprisonment for 15 days more. **Sd/- B. KEMAL PASHA, JUDGE** **ul/-** **[True copy] P.S. to Judge**