Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 26TH DAY OF JULY 2013 4TH SRAVANA, 1935 CRL.A.No. 252 of 2007 ( ) -------------------------- AGAINST THE JUDGMENT IN 419/2005 of ADDL. SESSIONS JUDGE (ADHOC)-II, THODUPUZHA. APPELLANT(S)/ACCUSED: --------------------- SIVAN, S/O.VELAYUDHAN, MULACKAKUDY HOUSE, CHANDANAKAVALA KARA, VATHIKKDY VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.21/2004 OF MURICKASSERY POLICE STATION). BY PUBLIC PROSECUTOR SRI.SREEJITY V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Pn B. KEMAL PASHA, J ------------------------------------ Crl.A.No. 252 of 2007 ----------------------------------- Dated this the 26th day of July, 2013 JUDGMENT
The accused in S.C.No.419/05 of the Additional Sessions Court (Adhoc)-II, Thodupuzha, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/-, in default, to undergo rigorous imprisonment for three months, has come up in appeal.
2. The prosecution case is that on 02.02.2004 at 10.00 a.m, while PW3, Sub Inspector of Police, Murickkassery Police Station and party were on patrol duty, he got information that the appellant was keeping arrack for sale at the southern side of his cattle shed. At 10.15 a.m, he along with the police party went to the property of the appellant. The appellant was available at his house. On search, a two litre can, concealed beneath a cardamom plant was traced out, which on examination was found containing 1= litres of arrack. The appellant was placed under arrest and the contraband was seized through Ext.P1 mahazar and samples of 180 ml were drawn. On reaching the police station with the appellant and Crl.A.No. 252 o”
2. the material objects, PW3 registered Crime No.21/04 through Ext.P4 FIR.
3. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P11 were marked. MO1 was identified. No defence evidence was adduced. The court below, found the appellant guilty of the offence under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.
4. PW3 produced the material objects before court, through Ext.P8 property list. He filed the forwarding note for subjecting the sample to chemical analysis. Ext.P9 is the copy of the forwarding note.
5. PW4, who was the successor in office to PW3, completed the investigation, and on obtaining Ext.P11 possession certificate from the PW5 Village Officer, filed the final report.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that PW3, who detected the crime, had violated the mandatory provisions of Section 31 of the Abkari Crl.A.No. 252 o”
3. Act, as he had not recorded the grounds or reasons for belief within the meaning of Section 31 of the Abkari Act, prior to the search and seizure. It is also argued that the appellant has only three cents of property with a building thereon and any contraband was not seized from the said property in his possession. It was also argued that the appellant was not properly identified.
7. According to PW3, while he was on patrol duty on 02.02.2004, he got information that the accused was keeping arrack for sale at the southern side of the cattle shed of the accused. Immediately, he rushed to the spot and made a search and effected the seizure. According to him, the contraband was seized through Ext.P1 mahazar. Two samples were drawn. Slips containing the signatures of witnesses and the appellant and also PW3 were affixed on the sample bottles as well as MO1 can, which contained arrack. The quantity of arrack involved is 1= litres. He placed the appellant under arrest through Ext.P5 arrest memo. He registered the crime through Ext.P4 FIR. Ext.P6 is the inspection memo and Ext.P7 is the arrest intimation. Crl.A.No. 252 o”
4. 8. According to PW3, he produced the material objects before court through Ext.P8 property list. He filed the forwarding note for subjecting the samples for chemical analysis. Ext.P9 is the copy of forwarding note. According to PW3, even at the time of the registration of the said crime, the appellant stood convicted in another abkari case and he was on bail. It seems that a single question was not asked to PW3, whether he had recorded any reasons or grounds of belief. Without giving such an opportunity to PW3, to give an answer regarding that, it could not be said that he had not recorded any reasons or grounds for belief.
9. PW1 is an occurrence witness cited by prosecution to prove the occurrence. He being a neighbour of the accused, even though has identified the accused, and admitted his signature in Ext.P1, did not support the seizure in this case. Similarly PW2, who is also another neighbour of the accused, has even though identified the accused as well as admitted his signature in Ext.P1, did not support the prosecution case.
10. On going through the evidence of PW3 and the evidence of PWs.1 and 2 and the contents of Ext.P1, it cannot Crl.A.No. 252 o”
5. be said that the appellant was not properly identified. Accused was the single person in the dock at the court below and the said witnesses identified the said accused; but the only thing is that they have mentioned about the appellant as 'accused', without mentioning his name. By merely pointing out that, it cannot be validly contented that the accused was not properly identified. If as a matter of fact, any other persons were also in the dock, as co-accused, it could have been complained of that there was no proper identification by mentioning the appellant by the term 'accused'.
11. Regarding the property, it seems that even though the appellant has stated that he has only three cents of property and building, PW3 as well as PW5 Village Officer have stated in evidence that the property in the possession of the appellant comes to around 1 acre. Of course, it is not registered land; but even then, PW5 Village Officer has identified the property by noting down the boundaries and the cultivation in it, and stated in evidence that it comes around one acre of property. The information received by PW3 was that the accused was keeping the contraband at the southern Crl.A.No. 252 o”
6. side of his cattle shed. The contraband was discovered from beneath a cardamom plant in the property. There is no meaning in contending that the contraband was not seized from any property which was in the possession of the appellant. Even though the learned counsel for the appellant has argued that the property is not lying separately demarcated, there is no meaning in contending the same, as the contraband was seized from beneath a cardamom plant. According to PW3 as well as PW5 the property was cultivated with cardamom, pepper etc.
12. Lastly, the learned counsel for the appellant has argued that the material objects were produced before the court on the next day only, whereas, the accused was produced before Court along with FIR, Ext.P1 seizure mahazar etc. on the date of detection itself. When the records were produced on the same day, it cannot be said that the material objects were subjected to any manipulation. Ext.P10 certificate of chemical analysis shows that the seals on the packets and on the bottles were intact and found tallied with the sample seals provided. As per Ext.P10, the samples Crl.A.No. 252 o”
7. contained 32.14% and 32.55% by volume of Ethyl Alcohol.
13. On going though the findings entered by the court below and the evidence and records in this case, I am satisfied that there is absolutely nothing to interfere with the conviction entered by the court below. Regarding sentence, the learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive. It is argued that while imposing the sentence, the quantity of the contraband involved, the circumstances in which the appellant is placed, etc. are also matters to be considered.
14. In Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC), an identical situation was dealt with by the Apex Court. In the said decision, 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, Crl.A.No. 252 o”
8. 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." 15. 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 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 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 Crl.A.No. 252 o”
9. to leave the Court free in exercise of judicial discretion in the matter of imposition of fine." 16. Considering the facts and circumstances of this case and the small quantity of contraband involved, I am satisfied that the sentence imposed by the court below requires modification. I am of the view that the sentence of simple imprisonment for two months, and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one month, will meet the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and modifying the sentence as simple imprisonment for two months, and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for one month. It is made clear that the appellant is entitled to set off, of the period, undergone by him in custody in connection with the investigation, inquiry and trial of this case under Section 428 of the Code of Criminal Procedure. Sd/- B. KEMAL PASHA, JUDGE AV /True Copy/ P.A to Judge Crl.A.No. 252 o”
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