Partly allowed

Babu v. State of Kerala

Kerala HC27 Sept 2016CRL.A/383/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part, maintaining the conviction of the appellant for possession of illicit arrack but modified the sentence from rigorous imprisonment to simple imprisonment for two months with a fine and default imprisonment.

What did the court decide?

Conviction maintained; sentence modified to simple imprisonment for two months and fine of ₹1 lakh; additional 15 days simple imprisonment in default; set off for period of detention allowed.

Babu Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938

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CRL.A.No. 383 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN SC.625/2006 of ADDITIONAL SESSIONS COURT, VADAKARA DATED 22-01-2009

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APPELLANT(S)/ACCUSED:

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BABU, S/O.CHATHU, AGED 40 YEARS, KULAMULLA PARAMBATH HOUSE, KUNNUMAL AMSOM DESOM, VADAKARA TALUK KOZHIKODE DIST.

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BY ADV. SRI.P.R.SREEJITH

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RESPONDENT(S):

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SR. PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.383 of 2009

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Dated this the 27^th day of September, 2016

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.625/2006 of

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the Additional Sessions Court, Vadakara, 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 rigorous imprisonment for six more months.

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The prosecution case is that on 16.11.2004 at 5

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p.m., the accused was found in possession of 10 litres of illicit arrack in a can at Kunnummal amsom, desom of

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Crl.A.383/2009

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: 2 :

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Vadakara Taluk, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Excise Inspector, Nadapuram. He placed the accused under arrest through Ext.P1 arrest memo and seized the contraband through Ext.P2 seizure mahazar. A quantity of 180 ml. was drawn as sample from the contraband. On reaching the excise office with the accused and properties, he registered Ext.P3 crime and occurrence report. The sample was produced before court on 17.11.2004 itself through Ext.P4 property list. He furnished the forwarding note, the copy of which is Ext.P5. The Assistant Excise Commissioner prepared Ext.P6 inventory and the same was certified by the learned Magistrate through Ext.P7. PW6 Excise Inspector conducted the investigation and filed the final report on getting Ext.P9 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 7 were

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Crl.A.383/2009

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: 3 :

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examined and Exts.P1 to P9 were marked. No defence evidence was adduced. The court below found the accused

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guilty of the offence under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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Heard learned counsel for the appellant and learned Public Prosecutor.

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Learned counsel for the appellant has argued that there are no ingredients in this case to invite an offence under Section 8(2) of the Abkari Act and the court below ought not to have convicted and sentenced the accused, especially when both the independent witnesses examined as PW3 and PW4 had turned hostile to the prosecution and did not support the prosecution case.

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PW1 has clearly narrated the incident. He identified the accused. According to him, the sample drawn by him was produced before court on the very next day. Ext.P4 is the property list, which clearly shows the

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Crl.A.383/2009

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: 4 :

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endorsement by the learned Magistrate regarding the receipt of the sample before court on 17.11.2004. Ext.P5 is the copy of the forwarding note. PW7, who was the Property Clerk of the court, also deposed that the sample was produced before court on 17.11.2004 itself.

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The evidence of PW1 is fully corroborated by the evidence of PW2 Preventive Officer of Excise, Nadapuram, who was also present along with PW1 at the time of seizure. He also identified the accused. PW5 Village Officer prepared Ext.P8 location certificate. According to PW6, he filed the final report on getting Ext.P9 certificate of chemical analysis. Ext.P9 shows that the sample contained 32.79%

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by volume of ethyl alcohol. PW1 as well as PW2 clearly deposed that they examined the contraband by tasting and smelling it and they could realise that the contraband was arrack.

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On considering all the aforesaid evidence, this

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Crl.A.383/2009

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: 5 :

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Court is satisfied that there is absolutely nothing to interfere with the conviction passed by the court below. Regarding sentence, the learned counsel for the appellant has sought for maximum leniency of this Court. Going by the decision of the Apex Court in Sasikumar Vs. State of Kerala [2012

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(4) KLT 867 (SC)] followed by this Court in Rajan Vs. State of Kerala [2013 (3) KLT 654] , this Court is of the view that the appellant is entitled to leniency in the question of sentence. Considering the quantity of the contraband involved, this Court is of the view that a sentence of simple imprisonment for two months and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more, will meet the ends of justice in the case.

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In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:-

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The appellant is sentenced to undergo simple

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Crl.A.383/2009

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: 6 :

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imprisonment for two months and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more.

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The appellant is entitled to set off, of the period, if any, undergone by him in detention in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/27/09

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// True Copy //

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PA to Judge

Babu v. State of Kerala

Case brief

What is this about?

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Babu v. State of Kerala

Case brief

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