Suresh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935 CRL.A.No. 1125 of 2004 (B) --------------------------- AGAINST THE JUDGMENT IN SC 241/2003 of ADDL.SESSIONS COURT (ADHOC), KALPETTA DATED 11-06-2004 APPELLANT/ACCUSED: ---------------------------------------- SURESH, S/O.NARAYANAN, 34/03 PAZHAMPILLI THAZHATHU VEEDU, VADACKANAD KIDANNGANAD, BATTERI. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SRI.SREEJITH.V.S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.A.No. 1125 of 2004 ## **-----------------------------------** Dated this the 16[th] day of August, 2013 ## **J U D G M E N T** The accused in S.C.No.241/2003 of the Additional Sessions Court (Adhoc), Kalpetta, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for six months and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one year, has come up in appeal. 2. The prosecution case is that on 18.10.2001 at 5.00 p.m, he was found carrying 2 litres of arrack in a can near the 'Panayambam Kurisu' near Manalady. 3. PW6 Excise Inspector of the Excise Enforcement and Anti-Narcotic Special Squad, Wayanad District placed the appellant under arrest and seized the contraband through Ext.P1 seizure mahazar. A sample of 200ml was drawn and the contraband as well as the sample were sealed. He reached the Excise Office by night along with the appellant and the properties and records and handed over the appellant, material objects and the records to PW4 at the Excise Range Office, Bathery on the next day. PW4 Crl.A.No. 1125 of 2004 2 registered Ext.P2 occurrence report and made arrangements to produce the contraband and the records to the court. Ext.P3 forwarding note was given. On obtaining Ext.P4 certificate of chemical analysis, he filed the complaint. The contraband and the sample were produced before court through Ext.P5 property list. 4. On the side of the prosecution PWs.1 to 6 were examined and Exts.P1 to P6 were marked. MO1 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. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that there is no sufficient evidence to connect the appellant with the offence punishable under Section 55(a) of the Abkari Act. It is also argued that there was delay in producing the contraband and sample before the court and the delay has not been properly explained. The learned Public Prosecutor has argued that there is only Crl.A.No. 1125 of 2004 3 two days delay in the production of contraband and sample before the court and the delay has been properly explained by PW4, by stating that he was on leave for two days and that was the reason for the said delay. 6. PW6, while he along with the excise party were on patrol duty, saw the appellant coming through the road by carrying a can at 5.00 p.m, on 18.10.2001. On seeing the excise party, the appellant tried to move away. He was intercepted and the contents of the can was verified. MO1 can was found containing 2 litres of arrack. He placed the appellant under arrest and a sample of 200ml was drawn from the contraband. He seized the contraband through Ext.P1 mahazar. 7. PW1 was the Preventive Officer attached to the Excise Enforcement and Anti-Narcotic Special Squad, Wayanad. According to him, he was also present along with PW6 at the time of seizure. He corroborated the versions of PW6 regarding the seizure. He identified the appellant and proved the sampling. PWs.2 and 3 were two occurrence witnesses. PW2 has turned hostile and did not support the Crl.A.No. 1125 of 2004 4 prosecution case. Even though PW3 has admitted his signature in Ext.P1 seizure mahazar, he did not support the prosecution case regarding the seizure of the contraband from the appellant. 8. PW5 was the Preventive Officer of Excise, Bathery, who prepared Ext.P6 scene mahazar on 25.04.2002. According to PW4 Excise Inspector, Bathery, the appellant along with the contraband, material objects, and the records were produced before him at 11.15 a.m, on 19.10.2001. He registered Ext.P2 occurrence report. According to him, the properties were produced before court on 22.10.2001 through another Preventive Officer. Ext.P3 forwarding note was given. The material objects were produced through Ext.P5 property list. According to PW4, he was on leave on 20[th] and 21[st] and that was the reason why the material objects could be produced before court on 22.10.2001 only. It seems that the appellant was produced and the records were also produced before court on the next day itself. The learned Public Prosecutor has pointed out that 21.10.2001 was Sunday. Therefore, in fact there was only two days Crl.A.No. 1125 of 2004 5 delay in the production of material objects before court. When the records were produced along with the appellant, the said delay of one day is of no consequence at all. On going through the entire evidence and records, I do not find anything to interfere with the conviction passed by the court below. 9. The learned counsel for the appellant has pointed out that considering the meagre quantity of contraband involved in this case, the sentence imposed by the court below is excessive. 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 Crl.A.No. 1125 of 2004 6 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 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 Crl.A.No. 1125 of 2004 7 the decision noted supra, the small quantity of contraband involved, and the facts and circumstances of this case, I am of the view that a sentence of simple imprisonment for 3 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 simple imprisonment for 3 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