State of Kerala v Sathyanesan alias Satyan

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. 1841 of 2003 (E ) --------------------------- AGAINST THE JUDGMENT IN SC 94/2002 of ADDL.SESSIONS COURT (ADHOC-II), KOTTAYAM DATED 22-10-2003 APPELLANT/ACCUSED: -------------------------------- SATHYANESAN@ SATYAN, S/O.PADMANABHAN, PALLEZHATHUPADY HOUSE, KUDAECHOOR KARA, VECHOOR VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl. Appeal No.1841 of 2003 E ````````````````````````````````````````````````````````````` Dated this the 26[th] day of August, 2013 ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Accused in S.C.No.94/2002 of the Additional Sessions Court (Adhoc-II), Kottayam, who stands convicted under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for sixty days more, has come up in appeal. 2. The prosecution case is that, on 20.05.2001 at 2.30 am, the appellant was found keeping in his possession at his house 25 litres of wash and 150 ml. of arrack along with other utensils and implements for brewing arrack. 3. The crime was detected by PW2, Excise Inspector, Vaikom, on getting prior information. After preparing the search memo and sending it to the court, he Crl.A.1841/2003 : 2 : along with the excise party reached the house of the appellant and placed the appellant, who is an absconding accused in another excise crime, under arrest. After placing the appellant under arrest, they searched the house and seized 25 litres of wash in a can of 30 litre capacity and also 150 ml. of arrack in a bottle of 1½ litre capacity. They could seize the utensils and other implements for brewing arrack. Samples were drawn. As the wash was a perishable item, the balance quantity of wash was destroyed. MO1 can, MO2 vessel and MO3 plastic tube were seized through Ext.P1 mahazar. On reaching the office along with the appellant and the material objects and records, he registered C.R.No.7/2001 though Ext.P3 occurrence report. Ext.P4 is the search list. The accused and the material objects along with the records were produced before court on 20.05.2001 through Ext.P5 remand report. PW2 filed the forwarding note for subjecting the sample to chemical analysis. On obtaining Ext.P6 certificate of chemical Crl.A.1841/2003 : 3 : ## analysis, the complaint was filed. 4. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P9 were marked. MOs 1 to 3 were identified. The court below found the appellant guilty of the offence punishable under Section 55(g) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that PW2 has violated the provisions contained in Section 36 of the Abkari Act and also Section 100 of the Code of Criminal Procedure, as the search was not conducted in the presence of two independent witnesses of the locality. It is also argued that there is nothing to show that the contraband and the samples were produced before court, and the same were forwarded to the laboratory. It has been further argued that the appellant was falsely implicated in this case due to previous enmity on the part of the excise officials towards Crl.A.1841/2003 : 4 : him. 6. PW1 was the independent witness cited by the prosecution. According to him, he did not see the incident, even though he has admitted his signature in Ext.P1 mahazar. PW2 was the Excise Inspector, Vaikom. According to him, on 19.05.2001 at 10.30 p.m. he received reliable information that the appellant was keeping in his possession wash and other implements for brewing arrack. After preparing and sending the search memo, he along with the excise party, reached the spot by about 2.30 am on 20.05.2001. The appellant, being an absconding accused in excise crime No.3/2000 of the said excise range, was placed under arrest. On a search, the contrabands as aforesaid and the utensils and implements for brewing arrack were seized through Ext.P1 mahazar. Samples were drawn from the arrack as well as the wash. He identified the material objects as MOs.1 to 3. 7. According to PW2, on reaching the excise office Crl.A.1841/2003 : 5 : along with the appellant and the material objects and records, he registered C.R.No.7/2001 through Ext.P3 occurrence report. Ext.P4 is the search list. According to him, he produced the accused and the material objects and records before the court on 20.05.2001 itself. Ext.P5 is the remand report dated 20.05.2001. According to the learned counsel for the appellant, the arrest memo was not produced and, therefore, there is no evidence to show as to when the accused was arrested and as to when the accused was produced before court. Ext.P5 remand report clearly reveals the time of arrest and the production of the accused before court. The non production of the arrest memo is of no consequence at all especially when Ext.P5 stands proved. Ext.P5 shows the seal of the Chief Judicial Magistrate's Court on 20.05.2001, which clearly reveals that the appellant was produced before court on the same day. According to PW2, he gave the forwarding note and thereby the samples were subjected to chemical analysis and Ext.P6 Crl.A.1841/2003 : 6 : certificate was obtained. It seems that the property list was produced by the appellant himself and got it marked as Ext.D1, in order to show that the contraband and the sample were received by the court on 23.05.2001 only. At the same time, Ext.D1 is dated 20.05.2001. It seems that the court received the material objects on 23.05.2001 only. 8. PW3 was the Preventive Officer of Excise, who was also present along with PW2 at the time of seizure. He has fully corroborated the evidence of PW2 in all material particulars. PW4 was the Excise Inspector, Kaduthuruthy. He took over the investigation on 04.12.2001 and prepared Ext.P7 scene mahazar. PW5, Secretary of the Vechoor Grama Panchayat, has issued Ext.P9 ownership certificate, which shows that the house in question, from where the seizure was made, belongs to the appellant. 9. On going through the entire evidence and records of this case, it stands proved that the prosecution could make out the offence under Section 55(g) of the Abkari Act Crl.A.1841/2003 : 7 : as against the appellant. On scanning the evidence and materials on record, I do not find any reason to interfere with the conviction passed by the court below. 10. At the same time, regarding sentence, the learned counsel for the appellant has pointed out that the court below has failed to take note of the meagre quantity of the contraband involved in this case. Ext.P6 certificate of chemical analysis shows that the sample of wash contained 12% by volume of Ethyl Alcohol and the arrack contained 23.77% by volume of Ethyl Alcohol. It is true that there were only meagre quantities of the contraband. 11. The Apex Court has, in the question of sentence relating to comparatively small quantity of arrack, in _**Sasikumar and another v. State of Kerala [2012 KHC 4713 (SC)]**_ , 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_ Crl.A.1841/2003 : 8 : _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 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_ Crl.A.1841/2003 : 9 : _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 ₹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.”_ Presently, the Apex Court has given wide discretion to the courts when dealing with abkari offences in such matters, in the question of default sentence. Crl.A.1841/2003 : 10 : 12. The learned counsel for the appellant has pointed out that the appellant was arrested on 20.05.2001 and enlarged on bail on 31.07.2001. Applying the guidelines given by the Apex Court in the decision noted in _**Sasikumar**_ 's case( _Supra_ ) to the case in hand, and considering the meagre quantity of the contraband involved and the facts and circumstances pointed out by the learned counsel for the appellant, I am of the view that a sentence of simple imprisonment for two months and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for one more month, 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 appellant shall undergo simple imprisonment for two months and to pay fine of ₹1 lakh, in default, to undergo simple imprisonment for one more month. Of course, the appellant is entitled to set off of the period undergone by Crl.A.1841/2003 : 11 : 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)** aks/26/08 _// True Copy //_ _PA to Judge_