Vasudevan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 1935 ## CRL.A.No. 1254 of 2004 (C) --------------------------- AGAINST THE JUDGMENT IN SC 150/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR DATED 05-07-2004 ## APPELLANT/ACCUSED: VASUDEVAN, S/O. CHAKKAPPAN, PALLATHERI HOUSE, MANJUR DESOM, NANDIPULAM THRISSUR. BY ADV. SRI.RENJITH THAMPAN ## RESPONDENTS/STATE/COMPLAINANT: ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, IRINJALAKUDA RANGE, THRISSUR. BY PUBLIC PROSECUTOR SMT.SHEEBA M.T THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl. Appeal No.1254 of 2004 E ````````````````````````````````````````````````````````````` Dated this the 24[th] day of July, 2013 ## **O R D E R** ~ ~ ~ ~ ~ ~ Accused in S.C.No.150/2004 of the III Additional Sessions Court(Adhoc-II), Thrissur, who stands convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1 lakh, in default, to undergo rigorous imprisonment for three months, has come up in appeal. 2. The prosecution case is that, on 18.08.1999 at 6.15 p.m., PW1 Assistant Excise Inspector and party could see the appellant attempting to pour liquor from a 750 ml. bottle into a glass tumbler at the pathway leading to Nanthipulam paddy field. They intercepted the appellant and seized the bottle containing 700 ml. of Indian Made Crl.A.1254/2004 : 2 : Foreign Liquor, the glass tumbler, a can containing 1½ litres of water, two empty bottles of 180 ml. and 375 ml. capacity and an amount of ₹141/- from the appellant. 3. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P10 were marked. MOs 1 to 6 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55(i) of the Abkari Act, 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 argued that there is no evidence in this case to prove that the appellant sold liquor. According to the learned counsel for the appellant, the appellant was in possession of permissible quantity of liquor and, therefore, it cannot constitute an offence under Section 55(i) of the Abkari Act. 5. PW1, Assistant Excise Inspector of the Special Crl.A.1254/2004 : 3 : Excise Office, Chalakudy, has stated in evidence that he saw the appellant attempting to pour liquor from 750 ml. bottle into a glass tumbler and on seeing the Excise party, the other two persons, who were present there, ran away from the spot. A liquor bottle contained 700 ml. of liquor, a glass tumbler, two empty liquor bottles of180 ml. and 375 ml. capacity and an amount of ₹141/- were seized from the appellant through Ext.P1 seizure mahazar. The appellant was placed under arrest through Ext.P2 arrest memo. Ext.P3 is the arrest notice. A sample was drawn from the contraband. 6. The accused was produced before court through Ext.P4 remand application. The Excise Inspector registered Ext.P5 occurrence report. The material objects were produced before court through Ext.P6 property list. Ext.P7 is the certificate of chemical analysis, which shows that the sample contained 42.08% by volume of Ethyl Alcohol. PW1 identified MO1 can containing water, MO2 750 ml. bottle, Crl.A.1254/2004 : 4 : MO3 375 ml. empty bottle, MO4 180 ml. empty bottle, MO5 glass tumbler and MO6 series currency notes for ₹141/-. He identified the appellant as the accused, who was placed under arrest by him. 7. As usual in an abkari case, PWs 2 and 3, who were cited by the prosecution as occurrence witnesses, who were the attestors to Ext.P1 mahazar, have turned hostile to the prosecution even though they have admitted their signatures in Ext.P1. 8. PW4 was the Preventive Officer of the Special Squad of Irinjalakkuda Excise Circle. He was also present along with PW1 at the time of seizure. He has corroborated the evidence of PW1 in all material particulars. PW5 was the Excise Inspector who conducted the investigation. He went to the scene of occurrence and prepared Ext.P9 scene mahazar. Ext.P10 is the rough sketch in respect of the scene of occurrence. 9. From the circumstances clearly established Crl.A.1254/2004 : 5 : through the evidence of PWs 1 and 4, it has clearly come out that the appellant was engaged in selling IMFL. The fact that he was in possession of IMFL of less than the permissible maximum quantity, does not make any difference at all, when he was engaged in sales of such a quantity of liquor. The seizure of a can containing 1½ litres of water, two empty liquor bottles, 750 ml. bottle containing 700 ml. of IMFL, the glass tumbler and the sale proceeds of ₹141/-, clearly reveal all the circumstances required to conclude that the appellant was engaged in the sale of IMFL. Whether it is of permissible quantity or not, it clearly constitutes an offence within the purview of Section 55(i) of the Abkari Act. On a scrutiny of the evidence and records of this case, I do not find anything to interfere with the conviction passed by the court below. 10. Regarding sentence, the learned counsel for the appellant has pointed out that the appellant is a daily labourer. Even during the time of occurrence, the appellant Crl.A.1254/2004 : 6 : was 65 years old. The quantity of contraband involved is only 700 ml. of IMFL. 11. An identical situation was dealt with by the Apex Court in _**Sasikumar and another v. State of Kerala [2012 KHC 4713 (SC)]**_ , wherein 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_ Crl.A.1254/2004 : 7 : _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 fine but lays down that the fine shall not be less than ₹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 ₹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_ Crl.A.1254/2004 : 8 : _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.”_ 12. Considering the facts and circumstances of this case, the poor circumstance in which the appellant is placed, the small quantity of contraband involved, the old age of the appellant, etc., I am of the view that the sentence imposed by the court below is excessive. I am satisfied that a sentence of simple imprisonment for two months and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for two more months 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 Crl.A.1254/2004 : 9 : follows:- The petitioner shall undergo simple imprisonment for two months and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for two more months. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/24/07 _// True Copy //_ _PA to Judge_