Judgment:
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 13TH DAY OF AUGUST 2013 22ND SRAVANA, 1935 CRL.A.No. 237 of 2007 ( ) -------------------------- AGAINST THE JUDGMENT IN SC 576/2005 of ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE DATED 24 01-2007 APPELLANT/ACCUSED: --------------------------------- VIJAYAN, S/O.KANNAN, MUTHUPARAMBE COLONY, KODIYATHUR AMSOM PANNIKKODE DESOM. BY ADVS.SMT.R.BINDU SASTHAMANGALAM SRI.M.SUNILKUMAR RESPONDENT/COMPLAINANT: ------------------------------------------- STATEOF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SHEEBA M.T THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.KEMAL PASHA, J.
````````````````````````````````````````````````````````````` Criminal Appeal No.237 of 2007 D ````````````````````````````````````````````````````````````` Dated this the 13th day of August, 2013 JUDGMENT
~ ~ ~ ~ ~ ~ ~ ~ ~ Accused in S.C.No.576/2005 of the Additional Sessions Court (Adhoc-I), Kozhikode, who stands convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh, in default, to undergo rigorous imprisonment for six more months, has come up in appeal.
2. The prosecution case is that, on 20.08.2003 at 5.30 p.m., while PW1, Preventive Officer of Kunnamangalam Excise Range, and party were on patrol duty through Eranjimavu-Pannikkode area, they could see the appellant coming with a plastic can from the opposite direction. The appellant was intercepted and the contents of the can was verified. The can was found containing 4 litres of arrack. The appellant was placed under arrest and the Crl.A.237/2007 :
2. : contraband was seized through Ext.P2 seizure mahazar. A sample of 180 ml. was drawn. PW1 and party took the appellant and the material objects to the excise office and produced before PW4, Excise Inspector.
3. PW4 registered Ext.P3 occurrence report. He produced the appellant and the material objects before court. Forwarding note was given and the sample was subjected to chemical analysis. On obtaining Ext.P6 certificate of chemical analysis, the complaint was filed.
4. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P7 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 58 of the Abkari Act, 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 are no sufficient materials to Crl.A.237/2007 :
3. : connect the appellant with the crime and, therefore, the appellant is entitled to an acquittal. PW1 was the Preventive Officer of Kunnamangalam Excise Range. According to him, on 20.08.2003, at 5.30 p.m., while he along with PW2 and party were engaged in patrol duty, they could see the appellant coming from the opposite direction by carrying MO1 plastic can. MO1 plastic can contained 4 litres of arrack. He placed the appellant under arrest through Ext.P1 arrest memo and seized the contraband through Ext.P2 seizure mahazar. A sample of 180 ml. was drawn. He produced the appellant and the material objects along with the records before PW4, Excise Inspector.
6. PW2 was the Excise Guard, who was present along with PW1 at the time of seizure. He has corroborated the evidence of PW1 in all material particulars. There is absolutely nothing to disbelieve the versions of PWs 1 and 2. The appellant has no case that PWs 1 and 2 were in inimical terms with him. As usual in an abkari case, PW3, Crl.A.237/2007 :
4. : who was cited by the prosecution as independent witness, has turned hostile to the prosecution, even though he has admitted his signature in Exts.P1 and P2. He has admitted that he has affixed his signature in the label affixed on MO1. At the same time, according to him, he did not see the seizure of the contraband from the appellant.
7. PW4 was the Excise Inspector of Kunnamangalam Excise Range. According to him, the appellant and the material objects along with the records in this case were produced by PW1 before him on 20.08.203 itself. He registered Ext.P3 occurrence report. He produced the material objects before court through Ext.P4 property list and filed Ext.P5 forwarding note for subjecting the sample to chemical analysis. Ext.P6 is the certificate of chemical analysis, which reveals that the seal of the sample was in tact and found tallying with the sample seal provided. The sample was found containing 33.67% by volume of Ethyl Alcohol. Ext.P7 is the scene plan prepared by the Village Crl.A.237/2007 :
5. : Assistant, Kodiyathur Village.
8. On going through the evidence discussed above, I do not find any materials to interfere with the conviction passed by the court below. From the evidence discussed above, the guilt of the appellant stands established and, therefore, the conviction is not liable to be interfered with.
9. Regarding sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive. An identical situation was dealt with by the Apex Court in Sasikumar and another Vs. State of Kerala [2012 KHC 471.(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 Crl.A.237/2007 :
6. : 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 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 Crl.A.237/2007 :
7. : 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." 10. Considering the facts and circumstances of this case and the small quantity of contraband involved, I am satisfied that a sentence of simple imprisonment for three months and to pay a fine of 1 lakh, in default, to undergo simple imprisonment for one more month will meet the ends of justice in this case. Crl.A.237/2007 :
8. : In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:- The appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of 1 lakh, in default, to undergo simple imprisonment for one more month. Sd/- (B.KEMAL PASHA, JUDGE) aks/13/08 // True Copy // PA to Judge