Vasu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** **CRL.A.No. 2141 of 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 92/2003 of ADDDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRAC COURT (ADHOC-1), KOZHIKODE DATED 04-12-2004** **APPELLANT(S)/ACCUSED::** **--------------------VASU, S/O. CHOYI, KANDAMPURAKKAL THAZHEKUNI, KOZHIKODE.** **BY ADV. SRI.M.T.SURESHKUMAR SRI. MANU THAMPI** ## **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA THROUGH THE EXCISE INSPECTOR REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OFKERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2141 of 2004 ---------------------------------------------Dated this the 11[th] day of March, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C. No.92/2003 of the Additional District & Sessions Judge, Fast Track (Adhoc-1), Kozhikode. The charge against the appellant is that on 11.8.2000 while the Preventive Officer, Koyilandy was conducting patrol duty within his jurisdiction, the accused was found carrying a Can and proceeding through the pathway leading to Areekkara paddy field. On seeing the Excise party, the accused tried to escape and the Excise Inspector intercepted him, inspected the Can and detected arrack in it. The accused was arrested and the contraband article were seized and reaching at the Excise office, he registered a crime. After completing investigation, Excise Crl.Appeal No.2141/2004 2 Range Inspector, Koyilandy laid charge before Judicial First Class Magistrate Court, Koyilandy from there it was committed to Sessions Court, Koyilandy, subsequently, it was made over to Additional Sessions Court. 2. During trial, prosecution examined five witnesses and marked Exts.P1 to P6. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 in support of his defence. The learned Additional Sessions Judge convicted the accused and sentenced to rigorous imprisonment for two years and fine of ₹1 lakh u/s.55(a) of the Abkari Act. Being aggrieved by that, he preferred this appeal. 3. Heard both sides. Possession of arrack is an offence u/s.8(1) and (2) of the Abkari Act. According to Section 8 of the Abkari Act, no personal shall manufacture, import, export without permit transit, possess, store, Crl.Appeal No.2141/2004 3 distribute bottle or sell arrack in any form. If any person contravenes any provisions of sub-section (1), he shall be punishable with imprisonment and with fine. This Court in **Gopan** v. **State of Kerala** [2007 (2) KLT 202] held that mere possesion of arrack in any form without any authority would only attract S.8 of the Abkari Act. In this context, I have examined the evidence in this case as to whether the appellant was carrying arrack as alleged by the prosecution. 4. The occurrence was deposed by PW1, the Preventive Officer, Excise Range Office, Koyilandy. His evidence shows that on 11.8.2000 at about 1.20 p.m., the appellant was found in possesion of MO1 on the pathway leading to Areekkara paddy field. On seeing the Excise Party, the appellant perplexed, upon suspicion, PW1 intercepted him and inspected MO1, in which detected 10 litres of arrack. He took 180ml as sample from MO1 and sealed at the place of occurrence. He also affixed lable and obtained signature of the accused and Crl.Appeal No.2141/2004 4 witness. PW1 also signed in the label and affixed in MO1 and the sample. For that, he prepared Ext.P2 seizure mahazar. PW1 identified MO1 arrack. Subsequently, he produced the contraband article and the accused before Excise Range Office, Koyilandy. PW2 Excise Guard accompanied PW1 supported the oral evidence of PW1. PW2 also identified MO1 cannas. 5. The independent witness, who attested Ext.P2, identified his signature on the label affixed in MO1. But, he deposed that he did not see the seizure of MO1 from the possession of the appellant. PW4 Village Officer prepared Ext.P3 site plan. The Excise Inspector, Koyilandy was examined as PW5, who deposed that PW1 entrusted MO1, the appellant and the relevant documents before Excise Range Office, Koyilandy. On the basis of that, he registered crime and Ext.P4 is the crime and occurrence report. Ext.P5 is the property list. The seized articles were produced before Court Crl.Appeal No.2141/2004 5 and the sample sent to chemical examiner's lab for examination. Ext.P6 is the chemical analysis report. The Excise Inspector, who conducted investigation, died later and PW5 conducted further investigation and laid charge before Court. On a perusal of the evidence of these witnesses, it is clear that MO1 was seized from the possession of the appellant. 6. In this context, I have examined the defence contention put forward by the appellant. He examined DW1 and contended that while he was drinking tea in the shop of DW1, the Excise officials arrested him and foisted a false case. Even though such a contention was raised, no evidence has been adduced by the appellant to substantiate that contention to prove the previous enmity. No complaint has been preferred against the Excise officials for falsely foisting a case against innocent person. If that be the position, the defence contention put forward by the appellant is only to be Crl.Appeal No.2141/2004 6 discarded. Analysing the evidence, it is clear that the appellant was in possession of 10 litres of arrack and the trial Court convicted the appellant u/s.55(a) of the Abkari Act. Possession of arrack is only an offence u/s.8(1) and (2) of the Abkari Act. Therefore, the conviction u/s.55(a) of the Abkari Act is set aside. However, the appellant is convicted u/s.8(1) and (2) of the Abkari Act. 7. Apex Court in **Sasikumar** v. **State of Kerala** [2012 (4) ## KLT 867(SC)] held as follows: “9. Before parting with the record of the case, we would like to point out that Section 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 7 Crl.Appeal No.2141/2004 under Section 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.” Therefore, the minimum amount of fine has been prescribed under the Abkari Act. Apex Court in the above decision held that minimum fine amount prescribed by the law is kept so high and observed that it is desirable to leave the Court free in exercise of judicial discretion in the mater of imposition of fine. Therefore, accepting the parameters, I am also of the opinion that fixing the minimum fine at such a high amount ignoring the financial condition of the accused is a pure discrimination in favour of those convicts who have sufficient means to pay huge amount as fine. When Statute provides particular sentence, the Court cannot reduce the minimum sentence imposed by the Statute. Apex Court settled the position like so and discretion has been granted to the Court. 8 Crl.Appeal No.2141/2004 Appeal is continuation of the trial and the appellate Court can also exercise jurisdiction invoking the parameters provided in **Sasikumar's case** (supra). If that be the position, the following sentence is sufficient to meet the ends of justice. In the result, the appellant is sentenced to imprisonment for one month and fine of 1,00,000/- (Rupees one lakh only) in₹ default of payment of fine, rigorous imprisonment for 15 days. The period of detention undergone by the accused during trial, investigation, enquiry shall be entitled to set off u/s.428 Cr.P.C. Crl.Appeal is partly allowed. ## **P.D. RAJAN, JUDGE.** acd Crl.Appeal No.2141/2004 9 Crl.Appeal No.2141/2004 10