Sundaran v. The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935 CRL.A.No. 419 of 2005 (C) -------------------------- AGAINST THE JUDGMENT IN SC 138/2002 of ADDITIONAL SESSIONS COURT (ADHOC), MANJERI DATED 27-12-2004 APPELLANT/ACCUSED: ---------------------------------------- SUNDARAN, S/O. PARAVAN, KANAKKAPILLA VEETTIL, URANGATTIRI, VETTILAPPARA MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/STATE: ---------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MANJERI EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. R BY ADV. PUBLIC PROSECUTOR SRI.SREEJITH.V.S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.A.No. 419 of 2005 ## **-----------------------------------** Dated this the 19[th] day of August, 2013 ## **J U D G M E N T** The accused in S.C.No.138/2002 of the Additional Sessions Court (Adhoc-I), Manjeri, who stands convicted under Section 55(a) of the Abkari Act, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for six more months, has come up in appeal. 2. The prosecution case is that on 02.02.1998 at 4.00 p.m, the appellant was found in possession of 2 litres of arrack at a place called Oorngaittiri. The crime was detected by PW1, Excise Inspector attached to the Excise Enforcement and Anti-Narcotic Special Squad, Malappuram, while they were engaged in patrolling duty. The contraband was seized through Ext.P2 seizure mahazar. A sample of 200ml was drawn. The appellant was placed under arrest through Ext.P1 arrest memo. PW1 went to the excise office with the appellant, material objects and records and registered Ext.P4 occurrence report. PW5 Preventive Officer of Excise, Manjeri prepared Ext.P5 property list and Ext.P6 2 Crl.A.No. 419 of 2005 forwarding note and produced the contraband and the sample before the court. The appellant was also produced before court. PWs.6 and 7, who were Circle Inspectors of Excise Squad, have conducted the investigation. PW8 Circle Inspector of Excise, Special Squad on obtaining Ext.P7 certificate of chemical analysis, filed the complaint. 3. On the side of the prosecution, PWs.1 to 8 were examined and Exts.P1 to P7 were marked. MO1 can was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and 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 mainly argued the point that the labels affixed on the sample as well as MO1 can did not contain the signatures of the witnesses and that the crime number was also shown on it. The argument is that the crime number could not have been entered on the labels at the time of seizure and the taking of sample, and therefore, the labels Crl.A.No. 419 of 2005 3 were subsequently manipulated and tampered with. 5. The evidence of PW1 fully stands corroborated by the evidence of PW2, who was also present along with PW1 at the time of seizure. Their evidence clearly reveal the seizure, the taking of sample and the preparations of Ext.P1 to P3. PW5, who was the Preventive Officer of Excise, Manjeri proved the registration of O.R.No.5/1998 through Ext.P4 occurrence report. He prepared Ext.P5 property list and Ext.P6 forwarding note and produced the accused as well as the properties before court. 6. It is true that the labels contained crime number and O.R number also. That has been explained by stating that the O.R number was incorporated on the labels, on reaching the excise office after the registration of Ext.P4 occurrence report. In incorporation of the crime number on the labels, thereby enabling the identification of the material objects, cannot be said to be an act by which the labels or the properties were tampered with or manipulated. There is nothing wrong in incorporating the O.R number or crime number on the labels which enabling proper identification of 4 Crl.A.No. 419 of 2005 the material objects at the court. If it is not incorporated, definitely, there is every possibility of misplacement of the material objects at the property room of the court. 7. It seems that all the procedures were duly complied with by the excise officials in the matter. PW8 has completed the investigation and filed the complaint on getting Ext.P7 certificate of chemical analysis. Ext.P7 shows that the seal on the sample was intact and it tallied with the sample seal provided. The analysis has revealed that the sample contained 30.52% by volume of Ethyl Alcohol. 8. From the evidence and records in this case, it has clearly come out that the appellant has committed the offence punishable under Section 55(a) of the Abkari Act. Matters being so, there is absolutely nothing to interfere with the conviction entered by the court below. 9. Regarding sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive and that the court below has failed to consider the meagre quantity of the contraband allegedly seized from the appellant. The quantity of the Crl.A.No. 419 of 2005 5 contraband involved in this case is just 2 litres of arrack. In the decision 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 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.” ## 10. 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 Crl.A.No. 419 of 2005 6 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 desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.” 11. Going by the dictum laid down by the Apex Court in the decision noted supra, the small quantity of contraband involved, and the facts and circumstances of this case, I am of the view that sentence of simple imprisonment for 2 months and a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more month, will meet the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and modifying the sentence as 7 Crl.A.No. 419 of 2005 simple imprisonment for 2 months and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the period, undergone by him in custody in connection with the investigation, inquiry and trial of this case, under Section 428 of the Code of Criminal Procedure. Sd/- **B. KEMAL PASHA, JUDGE** AV /True Copy/ P.A to Judge