In a criminal appeal under the Kerala Abkari Act, the High Court held that while evidence supported conviction, the accused was entitled to sentence leniency due to lack of criminal antecedents and medical ailments, modifying the original sentence.
The sentence of the trial court was modified to three months rigorous imprisonment and a fine of Rs.1,00,000/-.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937
CRL.A.NO. 1664 OF 2005 ( )
AGAINST THE JUDGMENT IN SC NO.645/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 17.08.2005
APPELLANT(S)/ACCUSED::
VIJAYAN, S/O. KARTHIKEYAN, KOCHUPURAYIL (H), KALKOONTHAL VILLAGE, ERATTAYAR KARA.
BY ADV. SRI.P.CHANDY JOSEPH
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA, REPRESENTED BY ADDITIONAL SUB INSPECTOR OF POLICE, KATTAPPANA, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. N. SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Appeal No.1664 of 2005 ---------------------------------Dated this the 16th day of February, 2016
J U D G M E N T
This appeal is preferred by the accused against
the conviction and sentence in S.C. No.645 of 2004 of the Additional Sessions Judge (Adhoc II), Thodupuzha under Sec.8(1) and (2) of the Kerala Abkari Act. The charge against the accused was that on 26.11.2001 at 6.00 p.m., he was found in possession of 3½ litres of arrack at Tunnel site Bhagam in Erattayar Kara by the Additional Sub Inspector of Police, Kattappana. The accused was arrested and the contraband articles were seized after preparing the mahazar. Reaching at the Police station, he registered the crime. After completing investigation, the Sub Inspector of Police, Kattappana laid charge before the Judicial First Class Magistrate Court, Kattappana. From there, the case was committed to Sessions Court. Subsequently, it is made over to Additional Sessions Judge (Adhoc -II), Thodupuzha.
Crl. Appeal No.1664 of 2005 2
to PW4 and marked Ext.P1 to P9. The material objects MO1 and MO2 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and marked Ext.D1 in support of his defence. The learned Additional Sessions Judge convicted the appellant under Sec.8(1) and (2) of the Kerala Abkari Act, sentenced him to rigorous imprisonment for one year and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.
Crl. Appeal No.1664 of 2005 3
with regard to the above arguments advanced by the appellant.
Crl. Appeal No.1664 of 2005 4
produced before the court as per Ext.P8 forwarding note. From there, it was forwarded to chemical examiners lab and Ext.P9 is the Chemical Examination Result. After completing the investigation, he laid charge before the court. Even though, the witness was cross examined by the defence counsel, there is no discrepancy found in taking sample and narrating the seizure. In cross examination, he stated that after entrusting MO1 to the station writer he did not know what happened. But, in re examination he stated that MO1 was not in his custody till it was produced before the court. This is only a minor discrepancy with regard to the custody of the article and that will not any way help the accused for granting the benefit of doubt with regard to seizure of article.
Crl. Appeal No.1664 of 2005 5
Crl. Appeal No.1664 of 2005 6
Sasikumar v. State of Kerala [2012 (4) KLT 867 SC] .
trial court against the appellant is modified as follows:
He is sentenced to imprisonment for three months under Sec.8(2) of the Kerala Abkari Act and pay a fine of Rs.1,00,000/-(Rupees one lakh only). In default of payment of fine, simple imprisonment for one month. The period of detention undergone by the accused during investigation, enquiry and trial shall be entitled to set off against the terms of imprisonment. The appellant is directed to surrender in the Additional Sessions Judge, Thodupuzha to undergo the modified sentence forthwith, failing which, the learned Sessions Judge shall issue a non bailable warrant against the appellant.
The appeal is partly allowed as above.
P.D. RAJAN JUDGE
/ True Copy / P.A. To Judge
NS/19/02/2016
3 issues framed by the court
Whether the delay in producing seized articles justifies granting leniency or benefit of doubt.
Whether the accused is entitled to sentence leniency given no criminal antecedents and medical ailments.
Whether the sentence imposed by the trial court should be modified.
Colour shows how this judgement treated each authority
Sasikumar v. State of KeralaRelied on¶32
Sasikumar v. State of Kerala [2012 (4) KLT 867 SC]
1 provisions across 1 enactments
VIJAYAN, S/O. KARTHIKEYAN
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
