T.K. Balan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935** ## **Crl.Rev.Pet.No. 815 of 2006 ( )** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 468/2004 of I ADDL. SESSIONS COURT, KOZHIKODE DATED 25-11-2005** ## **AGAINST THE ORDER/JUDGMENT IN SC 241/2001 of PRL. ASST. SESSIONS COURT, KOZHIKODE** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **----------------------------------------------------------------------------------** **T.K. BALAN, AGED 66 YEARS, S/O. KANARAN, ILLATH VEEDU, MANGOTE VAYAL KOTTOOLI AMSOM, DESOM, KOZHIKODE.** **BY ADV. SRI.V.V.SURENDRAN** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **-------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B. KEMAL PASHA, J** **-----------------------------------------------** Crl.R.P.No. 815 of 2006 **-----------------------------------------------** Dated this the 26[th] day of February, 2014 ## **O R D E R** The sole accused in S.C. No.241 of 2001 of the Assistant Sessions Court, Kozhikode, who was convicted under Sections 8(1) and (2) of the Abkari Act and sentenced to undergo simple imprisonment for three years and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 6 more months, challenged his conviction and sentence before the Sessions Court, Kozhikode through Crl.A.No.468/2004. 2. The learned Additional Sessions Judge allowed the appeal in part, by maintaining the conviction and by reducing the sentence to simple imprisonment for one year, by considering the then age of the appellant as above 63 years. Dissatisfied Crl.R.P.No. 815 of 2006 -:2:- with the impugned judgment in the appeal, the present Crl.R.P. has been filed. 3. The prosecution case is that on 2.5.2000 at 6.50 p.m., the petitioner was found engaged in selling arrack at a place called Mangottuvayal, by PW6 Sub Inspector of Police, Medical College Police Station, Kozhikode. On seeing PW6, the petitioner tried to move away. He was stopped by PW6 and the Police party. It was seen that the petitioner was holding MO1 can which contained 700 ml of arrack. The said contraband was seized by PW6 through Ext.P1 seizure mahazar. A sample of 180 ml was drawn. 4. The can was identified as MO1 and the glass tumbler held by the petitioner was identified as MO2. On reaching the Police Station with the petitioner and the contraband, PW6 registered the Crime, through Ext.P7 FIR. He placed the petitioner under arrest through Ext.P8 arrest memo. 5. PW5 Assistant Sub Inspector of Police conducted the investigation and prepared Ext.P2 scene mahazar. He produced ## Crl.R.P.No. 815 of 2006 -:3:- the properties before court through Ext.P4 property list. Forwarding Note was filed, the copy of which is Ext.P5. After chemical analysis Ext.P6 certificate was obtained which revealed that the sample of liquid contained 23.39% by volume of ethyl alcohol. On the completion of the investigation PW5 filed the final report. 6. Heard the learned counsel for the revision petitioner Sri.V.V.Surendran, and the learned Public Prosecutor Smt. Bindu Gopinath, for the State. The learned counsel for the petitioner has argued that there is no sufficient evidence to convict the petitioner for the offence under Section 8(1) and (2) of the Abkari Act. It is alternatively argued that the petitioner was more than 72 years old, and therefore, the appellant is entitled to maximum leniency in the question of sentence. 7. On going through the oral evidence as well as the documentary evidence in this case, I do not find any irregularity, illegality or impropriety in the conviction entered by the trial court which was upheld by the appellate court. Crl.R.P.No. 815 of 2006 -:4:- 8. PW6 has spoken to regarding the occurrence, in detail. His versions are fully corroborated by the evidence of PW7, Police Constable who had accompanied PW6. The evidence of PW6 and PW7 are further corroborated by the evidence of PW8, who is an independent witness. According to PW8, he saw the police seizing the arrack from the petitioner through Ext.P1 seizure mahazar. The records reveal that without much delay the materials reached the Court, as is evident from the endorsement in Ext.P4 property list, which shows that the materials were received by the Court on 5.5.2000. 9. PW1 and PW2, who were cited by the prosecution as two other occurrence witnesses, turned hostile to the prosecution, and did not support the prosecution case, even though they have admitted their signatures in Ext.P1. They have a version that their signatures were obtained in Ext.P1 while they had to appear at the Police Station in connection with some other matter. The fact that PWs 1 and 2 did not support the prosecution case, does not in fact, affect the prosecution case Crl.R.P.No. 815 of 2006 -:5:- as the occurrence clearly stands proved through the consistent versions of PWs 6, 7 and 8. There is absolutely nothing to interfere with the conviction passed by the trial court which was upheld by the appellate court. 10. Regarding the sentence, it is a hard reality that the petitioner, who is presently 72 years of age, was convicted under Sections 8(1) and (2) of the Abkari Act, as it was proved that he was found in possession of just 700 ml of arrack. Considering the meager quantity of the contraband and the fact that presently the petitioner is more than 72 years of age, no doubt, he is entitled to maximum leniency in the question of sentence. 11. _**Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC)** ,_ in a case wherein 40 litres of arrack was seized from an autorickshaw, the Apex Court had limited the sentence of imprisonment to one year and reduced the default sentence of fine to 15 days. In the decision noted _supra_ it was held as follows: _“We may note that in cases where poor people like_ Crl.R.P.No. 815 of 2006 ## -:6:- _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.”_ 12. Considering the facts and circumstances of this case, the meager quantity of contraband, i.e. 700 ml of arrack involved in this case, and the age of the petitioner being above 72 years, this Court is of the view that a sentence of simple imprisonment for a term of one month, and to pay a fine of ₹l lakh, in default, simple imprisonment for 15 days, will meet the ends of justice in this case. Crl.R.P.No. 815 of 2006 -:7:- 13. In the result, this Crl.R.P. is allowed in part by modifying the sentence as follows: The petitioner is sentenced to undergo simple imprisonment for one month and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more. It is made clear that the petitioner is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry, and trial of this case, under Section 428 Cr.P.C. ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] P.S. to Judge.