VIJAYAN S/O NARAYANAN v. THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR, QUILANDY EXCISE RANGE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935 CRL.A.No. 1229 of 2004 (E) --------------------------- AGAINST THE JUDGMENT IN SC 506/2002 of ADDL.SESSIONS COURT (ADHOC-II), KOZHIKODE DATED 07-07-2004 APPELLANT/ACCUSED: --------------------------------- VIJAYAN, S/O.NARAYANAN, AGED 39 YEARS, KANHIROLI HOUSE, MELADI AMSOM DESOM KOYILANDY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT: ------------------------------------------- THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR, QUILANDY EXCISE RANGE REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl. Appeal No.1229 of 2004 E ````````````````````````````````````````````````````````````` _Dated this the 5[th] day of September, 2013_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Accused in S.C.No.506/2002 of the Additional Sessions Court (Adhoc-II), Kozhikode, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for six more months, has come up in appeal. 2. The prosecution case is that, on getting information that the appellant was keeping arrack at his unnumbered house in Meladi Amsom, Koyilandi Taluk, PW1, Excise Inspector, Perambra, along with the Excise party reached the said house of the appellant on 11.04.1998 at 10 Crl.A.1229/2004 : 2 : am, and seized 5 litres of arrack kept by the appellant in the house. The appellant, who was present in the house, was placed under arrest through Ext.P2 arrest memo. Ext.P3 search list was prepared. A sample of 180 ml. was drawn from the contraband. The contraband was seized through Ext.P4 seizure mahazar. The appellant along with the material objects and records were taken to the Excise office, where PW4, Excise Inspector, registered C.R.No.7/1998 through Ext.P6 occurrence report. He produced the appellant before court through Ext.P7 remand report. The material objects were produced before court through Ext.P8 property list on 11.04.1998 itself. The same was returned by the court and again, it was produced back on 18.04.1998. On getting Exts.P10 and P11 certificates of chemical analysis, the complaint was filed. 3. On the side of the prosecution, PWs 1 to 4 were examined, Exts.P1 to P11 were marked, and MO1 was identified. No defence evidence was adduced. The court Crl.A.1229/2004 : 3 : below found the appellant guilty of the offence punishable under Section 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. According to the learned counsel for the appellant, the prosecution has failed to adduce any documentary evidence to show that the house, from where the contraband was allegedly seized, belongs to the appellant. It is also argued that there is no sufficient evidence to connect the appellant with the crime. 5. According to PW1 Excise Inspector, while he along with the Excise party was on patrol duty, they received information that the appellant was keeping arrack in his house. He prepared Ext.P1 search memo and thereafter, reached the house of the appellant with witnesses. PW1 searched the house and seized 5 litres of arrack from the house. The appellant was also present in the said unnumbered house and he was placed under arrest through Crl.A.1229/2004 : 4 : Ext.P2 arrest memo. Ext.P3 search list was prepared. A sample of 180 ml. was drawn from the contraband. The contraband was seized through Ext.P4 mahazar. He reached the Excise office with the appellant, material objects and records and registered O.R.No.6/1998 through Ext.P5 occurrence report. Thereafter, he produced the appellant along with the material objects and records before PW4 Excise Inspector, Koyilandi. He identified MO1 as the can seized from the house, which contained 5 litres of arrack. Even though the appellant is disputing his ownership or possession over the building from which the contraband was seized, it is the admitted fact that he was arrested from the said house. The appellant has not validly explained as to how he happened to be there at the said house. He has no explanation regarding the ownership or possession of the house. When the appellant was arrested from that house which, according to PW1, was the unnumbered house of the appellant, in the absence of any explanation as aforesaid, it Crl.A.1229/2004 : 5 : has to be considered that the said house was in the possession of the appellant and, therefore, the contraband seized from the house was being possessed by the appellant. 6. PW2 was the Preventive Officer of Excise, who was also present along with PW1 at the time of seizure. He has fully corroborated the versions of PW1 in all material particulars. PW2 has also proved the arrest of the appellant from the said house. It has come out from the evidence of PW1 and PW2 that, apart from the appellant, there were no other inmates at the house at the time of the search and seizure. 7. PW3, who was cited as independent occurrence witness by the prosecution, has turned hostile to the prosecution and did not support the prosecution case regarding search, seizure and arrest. At the same time, he has admitted his signature in Ext.P4 mahazar. In cross examination, he has stated that he had affixed his signature Crl.A.1229/2004 : 6 : in Ext.P4 at road. 8. PW4 Excise Inspector, has stated in evidence that the appellant along with the material objects and records were produced before him on 11.04.1998 itself and thereupon, he registered C.R No.7/1998 through Ext.P6 occurrence report. He produced the appellant before court through Ext.P7 remand report. Properties were produced before court through Ext.P8 property list. Even though the learned counsel for the appellant has argued that the material objects were produced before court on 18.04.1998 only, the versions of PW4 clearly show that the contraband was produced before court on 11.04.1998 itself and that the same was returned for production on a subsequent date and consequently, it was produced back on 18.04.1998. It seems that the documents were produced before court on 11.04.1998 itself as is evident from the seal and dated signature in the various documents. It seems that the contraband was produced before court on 11.04.1998 itself. Crl.A.1229/2004 : 7 : Even though there is no endorsement in writing to show that the contraband was returned on 11.04.1998 for production on a subsequent date, there is no reason to disbelieve the versions of PW4 regarding the production of the material objects before court on 11.04.1998 itself, especially when all the documents relating to the matter were produced on 11.04.1998 itself. 9. On going through the entire evidence and records of this case, I do not find anything to interfere with the conviction entered by the court below. 10. Regarding sentence, the learned counsel for the appellant has pointed out that the court below has not considered the meagre quantity of the contraband involved in this case at a time when the sentence was imposed. 11. The Apex Court has, in the question of sentence relating to comparatively small quantity of arrack, in _**Sasikumar and another v. State of Kerala [2012 KHC 4713 (SC)]**_ , held in paragraph 11 as follows:- Crl.A.1229/2004 : 8 : _“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 fine but lays down that the fine shall not be less than ₹1,00,000/-. Since the minimum amount of_ Crl.A.1229/2004 : 9 : _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 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.”_ Crl.A.1229/2004 : 10 : Presently, the Apex Court has given wide discretion to the courts when dealing with abkari offences in such matters, in the question of default sentence. 12. Applying the guidelines enunciated by the Apex Court in the decision noted in _**Sasikumar**_ 's case ( _supra_ ), and considering the facts pointed out by the learned counsel for the appellant and the meagre quantity of the contraband involved in this case, I am satisfied that a sentence of simple imprisonment for three months and to pay fine of ₹1 lakh, in default, to undergo simple imprisonment for one more month 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:- The appellant shall undergo simple imprisonment for three months and to pay fine of ₹1 lakh, in default, to undergo simple imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the Crl.A.1229/2004 : 11 : period, undergone by him in custody in connection with the investigation, inquiry and trial of this case, under section 428 Cr.P.C. Sd/- **(B.KEMAL PASHA, JUDGE)** _aks/05/09_ _// True Copy //_ _PA to Judge_