Sukumaran and Jayakumar v. State of Kerala

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. 1085 of 2005 ( F) --------------------------AGAINST THE JUDGMENT IN SC 555/2003 of ADDL. SESSIONS COURT (ADHOC-I), ALAPPUZHA DATED 08-06-2005 APPELLANTS/ACCUSED: ---------------------------------- 1. SUKUMARAN, S/O.KESAVAN, AGED 60, RENUKA NIVAS, KANNIMELMURI VELLIKUNNAM VILLAGE, MAVELIKKARA TALUK. 2. JAYAKUMAR, S/O.ACHUTHAN, AGED 27, KANNANKARA HOUSE, KANNIMEL MURI VALLIKUNNAM VILLAGE, MAVELIKKARA TALUK. BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.SREEJITH V.S. 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.1085 of 2005 ````````````````````````````````````````````````````````````` Dated this the 29[th] day of August, 2013 ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Accused in S.C.No.555/2003 of the Additional Sessions Court (Adhoc-I), Alappuzha, who stand convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years each and to pay a fine of ₹1 lakh each, in default, to undergo simple imprisonment for six more months each, have come up in appeal. 2. The prosecution case is that, on 05.07.2001 at 5.30 p.m., while PW1, Circle Inspector of Excise, Mavelikkara, and party were on patrol duty, they could see the first appellant taking out packets containing arrack from a bag in his hand and handing over it to the second Crl.A.1085/2005 : 2 : appellant. On seeing the Excise party, they attempted to move away. They were intercepted and the bag held by the first appellant and the person of the second appellant were searched. The bag held by the first appellant contained 35 packets each containing 150 ml. of arrack and some empty packets. On a search of the body of the second appellant, he was found keeping three packets each containing 150 ml. of arrack at his waist. Some of the packets were white packets and some of the packets were green packets. Samples were drawn from both the items, from two packets each. The appellants were placed under arrest through Exts.P2 and P3 memos. The contraband was seized through Ext.P1 mahazar. He took the appellants along with the contraband and samples and the records to the excise office and entrusted them to PW3, Excise Inspector. 3. PW3 registered C.R.No.39/2001 through Ext.P4 occurrence report. He produced the appellants before court through remand applications and also produced the Crl.A.1085/2005 : 3 : contraband, samples and empty covers through Ext.P5 property list. Ext.P6 requisition was also filed. On obtaining Ext.P7 certificate of chemical analysis, the complaint was filed. 4. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P7 were marked. MO1 series to MO3 were 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. 5. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor. The learned counsel for the appellants has argued that the contraband allegedly seized in the case were not identified before the court below during trial and, therefore, there is nothing to prove that such quantity of contraband was seized from the possession of the appellants. It is also argued that the evidence adduced by the prosecution is not sufficient to Crl.A.1085/2005 : 4 : ## connect the appellants with the crime. 6. PW1, Circle Inspector of Excise, Mavelikkara, has proved the occurrence. According to him, while he along with the Excise party was engaged in patrol duty, they could see the appellants in front of the house of Chaithramohanan at Kannimelmuri. He could see the first appellant taking some packets from the bag held by him and handing it over to the second appellant. On seeing the Excise party, the appellants attempted to move away. They were intercepted and searched. MO3 plastic bag which was in the hands of the first appellant was found containing 20 green packets filled with arrack and 15 white packets filled with arrack. There were some empty plastic packets also. On a search of the person of the second appellant, he was found keeping 3 green packets containing arrack at his waist. Two packets each from the white packets as well as green packets filled with arrack were opened and samples were drawn. Each of the polythene packets contained 150 ml. of arrack. The Crl.A.1085/2005 : 5 : contraband was seized through Ext.P1 mahazar. The appellants were placed under arrest through Exts.P2 and P3 arrest memos. He identified 13 empty white packets as MO1 series which were filled with arrack and 19 green empty packets which were filled with arrack as MO2 series. The plastic bag was identified as MO3. 7. PW4 was the Preventive Officer attached to the Excise Circle Office, Mavelikkara, who was also present along with PW1 at the time of the search and seizure. He has corroborated the versions of PW1 in all material particulars. He has also identified MO1 series, MO2 series and MO3. He has identified the appellants also. PW4 is also a signatory to Ext.P1 mahazar. 8. PW2, who was cited by the prosecution as an independent occurrence witness, has turned hostile to the prosecution and did not support the prosecution case. PW3, who was the Excise Inspector, Mavelikkara, has stated in evidence that he received the appellants, the Crl.A.1085/2005 : 6 : contraband, the samples, properties and records in this case and registered C.R.No.39/2001 on 06.07.2001 at 8.00 a.m. through Ext.P4 occurrence report. On the same day, he produced the appellants before court through remand applications and produced all the properties before court along with Ext.P5 property list and Ext.P6 requisition. He conducted the investigation and on obtaining Ext.P7 certificate of chemical analysis, the complaint was filed. 9. Even though it is contended that the prosecution has not explained as to how the contents of MO1 series and MO2 series were not present in the packets when the same were identified before court, no such questions were asked to the concerned witnesses. It seems that Ext.P5 property list dated 06.07.2001 clearly reveals the production of 13 packets each containing 150 ml. of arrack, 21 packets each containing 150 ml. of arrack, 9 green coloured empty polythene covers, 4 white empty polythene covers, MO3 plastic bag, a 375 ml. bottle containing 300 ml. of arrack as Crl.A.1085/2005 : 7 : sample and another 375 ml. bottle containing 300 ml. of arrack as sample. It seems that those properties were produced before court along with Ext.P5 property list on 06.07.2001 itself. The court had received the said properties as T.R.No.122/2001. The said properties noted as item Nos.1 to 5 in Ext.P5 were handed over to the Excise officers for keeping it at the excise office. The samples alone which were item Nos.6 and 7 in Ext.P5 were taken by the court. It seems that the said samples were analysed and Ext.P7 certificate of chemical analysis was obtained, which shows that the seals on the samples were in tact and tallied with sample seal and that the said samples contained 24.23% and 29.36% by volume of Ethyl Alcohol. When Ext.P5 property list contains the signature of the learned Magistrate and the court's seal which reveal the production of the entire items before the court on 06.07.2001, there is absolutely nothing to suspect the production of the properties before court. All the contraband items along with empty covers and Crl.A.1085/2005 : 8 : the samples were produced before court on 06.07.2001 itself. From the evidence discussed above, I am satisfied that the prosecution could make out all materials sufficient to constitute an offence under Section 55(a) of the Abkari Act as against these appellants. There is absolutely nothing to interfere with the conviction passed by the court below. 10. Regarding sentence, the learned counsel for the appellants has pointed out that the total quantity of the contraband allegedly seized in this case from both the appellants comes to 5.7 litres only, and that the court below has failed to take note of the meagre quantity of the contraband while imposing sentence. 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)]**_ , 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_ Crl.A.1085/2005 : 9 : _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 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_ Crl.A.1085/2005 : 10 : _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 ₹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 Crl.A.1085/2005 : 11 : courts when dealing with abkari offences in such matters, in the question of default sentence. 12. By applying the guidelines enunciated by the Apex Court in the decision noted in _**Sasikumar**_ 's case ( _supra_ ), and considering the meagre quantity of contraband involved in this case, and the facts and circumstances pointed out by the learned counsel for the appellants, I am satisfied that a sentence of simple imprisonment for two months each and to pay a fine of ₹1 lakh each, in default, to undergo simple imprisonment for 15 days more 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:- Each of the appellants shall undergo simple imprisonment for two months and pay fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more. Of course, the appellants are entitled to set off, of the Crl.A.1085/2005 : 12 : period, if any, 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)** aks/29/08 _// True Copy //_ _PA to Judge_