Sunil Raj v. 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. 429 of 2005 (A) ----------------------------------- AGAINST THE ORDER/JUDGMENT IN SC 360/2004 of ADDITIONAL SESSIONS COURT (ADHOC-II), KOLLAM DATED 22-02-2005 AGAINST THE ORDER/JUDGMENT IN CP 48/2003 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-II, KOTTARAKKARA APPELLANT/ACCUSED:: ------------------------------- SUNIL RAJ, S/O. CHACKO, CHARUVILA VEEDU, UDIYANCODU, CHERUVALLOOR MURI, UMMANNOOR VILLAGE, KOTTARAKKARA, KOLLAM. BY ADVS.SRI.PREMCHAND R.NAIR SRI.VARGHESE.J.PUNNACHALIL RESPONDENT/COMPLAINANT:: ----------------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, CHADAYAMANGALAM EXCISE RANGE, REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY THE 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: DSV/- B. KEMAL PASHA, J -----------------------------------Crl.A.No. 429 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.360 of 2004 of the Additional Sessions Court (Adhoc-II), Kollam, who stands convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for one more year, has come up in appeal. 2. The prosecution case is that on 13.10.2000 at 11.45 am, the appellant was found in possession of three litres of arrack in a 5 litres can on the Vaickal to Ummannoor road. He was intercepted at Cheruvalloor muri, by PW2 Excise Inspector, Chadayamangalam and party, who were on patrol duty. It is alleged that on seeing the Excise party, the appellant tried to move away. He was intercepted and the contents of the can was verified. The can was found containing three litres Crl.A.No. 429 of 2005 2 of arrack. The appellant was placed under arrest and samples of 300 ml each was drawn from the contraband. The contraband was seized through Exhibit P1 mahazar. C.R.No.48 of 2000 was registered through Exhibit P4 occurrence report. Material objects were produced before court through Exhibit P5 property list. The requisition was filed for subjecting the sample to chemical analysis and Exhibit P6 certificate of chemical analysis was obtained. PW5 Excise Inspector, Chadayamangalam completed the investigation and filed the final report. 3. On the side of the prosecution, PWs 1 to 5 were examined and Exhibits P1 to P6 were marked. On the side of the appellant, the mother of the appellant was examined as DW1. The court below found the appellant guilty of the offence under Section 8 (2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. Crl.A.No. 429 of 2005 3 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that the court below has not considered the evidence of DW1 and has discarded the evidence of DW1 on flimsy grounds. It has been argued that the appellant was taken into custody by the Excise people at his house on account of previous enmity. 5. According to PW2, while he was on patrol duty along with the Excise Party, they could see the appellant coming with a can containing arrack. The appellant was intercepted and placed under arrest through Exhibit P2 arrest memo. Two samples of 300 ml each were drawn. The contraband was seized through Exhibit P1 mahazar. C.R.No.48 of 2000 was registered through Exhibit P4 occurrence report. He produced the appellant before court. Properties were produced before court through Exhibit P5 property list. The requisition was filed for subjecting the sample to chemical analysis. Exhibit P6 is Crl.A.No. 429 of 2005 4 the certificate of chemical analysis. 6. The contentions resorted to by the appellant at the time of cross-examination of PW2 was that the Excise People who came in search of another man named Robinson, had entered in a wordy altercation with DW1, who is the mother of the appellant, unnecessarily and she was abused. The appellant, who came to know about it, questioned the Excise People, thereby, he was unnecessarily implicated in a false case registered as C.R.No.41 of 2000. In the said case, he was enlarged on bail, and within two days the present case was also registered against him, thereby falsely foisting an Abkari case against him. PW1 who was also present along with PW2 has proved the occurrence and corroborated the versions of PW2 in all material particulars. PW3 has even though admitted his signature in Exhibit P1 mahazar, turned hostile to the prosecution and did not support the prosecution case regarding the Crl.A.No. 429 of 2005 5 seizure of the contraband from the appellant. Similarly, PW4 who was also cited as an independent witness, has turned hostile to the prosecution regarding the seizure. At the same time he also has admitted his signature in Ext.P1. PW5 Excise Inspector, Chadayamangalam Excise Range has completed the investigation and filed the final report. The appellant has examined his mother as DW1 to prove that there had a wordy altercation between her and the Excise People and she was abused by the Excise People who came in search of the house of one Robinson. Even though she has a case that the complaint was filed by her before the Excise Commissioner, she has admitted that she has not even a copy of the said complaint with her. There is absolutely nothing to show that she had preferred any such complaint. When examined under Section 313 of the Code of Criminal Procedure, apart from stating that he was apprehended from his house, the appellant had no Crl.A.No. 429 of 2005 6 case that he had entertained any quarrel with the Excise people as they had abused his mother. Had there been any such incident, definitely that would have been stated by the appellant when examined under Section 313 of the Code of Criminal Procedure. On going through the evidence and records as a whole, I do not find anything to interfere with the conviction passed by the court below. 7. Regarding the sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive. It has also been pointed out that the appellant had been undergoing detention as an under-trial prisoner in this case for altogether 447 days. 8. 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 follows: Crl.A.No. 429 of 2005 7 “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.A.No. 429 of 2005 8 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 Crl.A.No. 429 of 2005 9 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.” 9. By applying the dictum laid down by the Apex Court in the decision noted supra and the facts and circumstances of the case and also the meager quantity of the contraband involved in this case, I am satisfied that the sentence imposed by the court below is highly excessive. It seems that the appellant had undergone detention for 447 days. Considering the facts and circumstances of the case, I am of the view that a sentence of simple imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for 15 more days, 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: Crl.A.No. 429 of 2005 10 The appellant is sentenced to undergo simple imprisonment for 6 (six) months and to pay a fine of `1,00,000/- (Rupees One Lakh only), in default, to undergo simple imprisonment for 15(Fifteen) more days. 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 Cr.P.C., as far as the substantive sentence of imprisonment is concerned. B. KEMAL PASHA, JUDGE. DSV/-