The High Court upheld the conviction of the appellant for transporting arrack under the Abkari Act but reduced the sentence to one month of simple imprisonment, applying the Apex Court's view on leniency for small quantities.
The criminal appeal was allowed in part by modifying the sentence from one year rigorous imprisonment to one month simple imprisonment.
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 B.KEMAL PASHA
MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938
CRL.A.No. 223 of 2009
SC.1436/2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), KOLLAM DATED 08-01-2009 CP.116/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KARUNAGAPPALLY
APPELLANT(S)/ACCUSED::
SASIDHARAN, S/O.DHAMODHARAN, ILALMBADATHU VADAKKATHIL, PAVUMPA THEKKU MURI, PAVUMPA VILLAGE, KOLLAM DISTRICT.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA- REPRESENTED BY
SUB INSPECTOR OF POLICE, KARUNAGAPPALLY EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 223 of 2009
............................................................... Dated this the 3rd day of October, 2016
J U D G M E N T
The appellant is the accused in S.C.No.1436/05 of the Additional Sessions Court(Adhoc-I), Kollam, who stands convicted under Section 8(2) 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 simple imprisonment for three more months.
Crl. Appeal No. 223 of 2009
-: 2 :-
the excise party. The offence was detected by PW1, Preventive Officer of Excise Circle Office, Karunagappally, while he was on patrol duty. He seized the contraband through Ext.P1 mahazar. Samples were drawn from two covers. He placed the appellant under arrest through Ext.P3 arrest memo. He took the accused, the properties and records to the Excise Office, Karunagappally. PW5 Excise Inspector, Karunagappally registered Ext.P5 crime and occurrence report. He produced the properties before court through Ext.P6 property list. Forwarding Note was furnished. PW6, Excise Inspector, Karunagappally conducted the investigation and filed the final report on getting Ext.P8 certificate of chemical analysis.
Crl. Appeal No. 223 of 2009
-: 3 :-
favour of the appellant, the registered owner was arraigned as A2 in the case. Subsequently, the court below discharged A2 at the stage of Section 227 Cr.P.C.
offence under Section 8(2) of the Abkari Act, and the conviction and sentence passed by the court below are liable to be set aside. It has been argued that the vehicle belongs to A2 and there was nothing to connect the appellant with the vehicle.
Crl. Appeal No. 223 of 2009
-: 4 :-
offence, has deposed that he could see the appellant riding on the scooter and on seeing the excise party, the accused ran away from the spot after leaving the scooter on the road side. He was chased and apprehended. Samples were drawn from two covers of arrack. PW4 was another Preventive Officer who was present along with PW1. He has also fully supported the versions of PW1. The evidence of PW1 is fully corroborated by the evidence of PW4.
Crl. Appeal No. 223 of 2009
-: 5 :-
which clearly shows that the sample contained 21.43% by volume of ethyl alcohol.
contraband was arrack in order to invite an offence punishable under Section 8(2) of the Abkari Act. Both PW1 and PW4, who were experienced excise officials, have deposed that they could identify the contraband liquor as arrack by smelling and tasting it. Ext.P8, coupled with the evidence of PW1 and PW4, clearly prove that the contraband item was arrack. There is nothing to rope in A2 in the case because the scooter was being ridden by the appellant. Both PW1 and PW4 could identify the appellant as the person who was riding the scooter. True that A2 was the registered owner. At the same time, the excise officials have no case that A2 was found riding the scooter either as rider or pillion rider. His presence was not there.
Crl. Appeal No. 223 of 2009 -: 6 :-
appellant has committed an offence punishable under Section 8(2) of the Abkari Act. There is absolutely nothing to interfere with the conviction.
In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as
Crl. Appeal No. 223 of 2009
-: 7 :-
follows:
“The appellant is sentenced to undergo simple imprisonment for one month and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more. It is made clear that the appellant is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.”
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
2 issues framed by the court
Whether the evidence of seizure of arrack was sufficient to prove the conviction of the accused.
Whether the appellant is entitled to leniency in sentence given the quantity of contraband and time elapsed.
Colour shows how this judgement treated each authority
Sasikumar v. State of KeralaRelied on¶12
Sasikumar v. State of Kerala [2012 (4) KLT 867 (SC)]
3 provisions across 2 enactments
Sasidharan
State of Kerala
B.Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
B.Kemal Pasha
Parties & counsel
