Allowed

Shaji v. State of Kerala

Kerala HC22 Aug 2016CRL.A/413/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, upholding the conviction under Section 8(2) of the Abkari Act but reducing the sentence. The accused, found with 3 litres of arrack, is sentenced to two months imprisonment and a fine of ₹1 lakh, with leniency applied.

What did the court decide?

Conviction maintained; sentence reduced to two months' simple imprisonment and a fine of ₹1 lakh with 15 days default imprisonment.

Shaji Vs State of Kerala — Criminal Trial and Appeal | 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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MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938

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CRL.A.No. 413 of 2009

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S.C.NO. 5/2009 OF ADDITIONAL SESSIONS COURT, THRISSUR FAST TRACK COURT NO.II (ADHOC)

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APPELLANT(S)/ACCUSED :

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SHAJI, S/O. VASU, KALAPURATHARA HOUSE, MATTATHUR VILLAGE, MANDARAPPILLY.

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BY ADVS. SRI.C.HARIKUMAR SMT.MADHURI ANAND

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RESPONDENT(S)/RESPONDENT :

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STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE, IRINJALAKUDA.

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BY PUBLIC PROSECUTOR SMT. MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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B. KEMAL PASHA, J.

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Crl. Appeal No.413 of 2009

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Dated this the 22^nd day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.5/2009 of the

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Additional Sessions Court, Adhoc-II, Thrissur, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for three years and a to pay a fine of ₹1 lakh, in default to pay simple imprisonment for one more year.

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The prosecution case is that on 09.01.2003 at 6.15 p.m., the accused was found transporting 3 litres of arrack in a jerry can of 5 litres capacity at Mandarapally desom, Mattathur village.

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The offence was detected by PW1 Preventive Officer of Excise, Irinjalakkuda and party. PW1 placed the accused under arrest through Ext.P2 arrest memo and

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seized the contraband through Ext.P1 mahazar. A sample

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Crl.A.413/2009

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: 2 :

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of 300 ml. was drawn from the contraband. He produced the accused along with property, sample and records at the excise office. PW6 Excise Inspector registered Ext.P8 crime and occurrence report. The properties were produced before court through Ext.P10 property list. PW5 Excise Inspector conducted the investigation and filed the complaint on getting Ext.P7 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 6 were examined, Exts.P1 to P10 were marked and MO1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable 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

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that there is no sufficient evidence before the court below in order to convict and sentence the accused for the offence

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Crl.A.413/2009

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: 3 :

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under Section 8(2) of the Abkari Act.

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The evidence of PW1 clearly proves the seizure

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of the contraband and the arrest of the accused. The evidence of PW1 is fully corroborated by PW2, Preventive Officer of Excise who also accompanied PW1.

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PW6 was the Excise Inspector before whom the accused along with the contraband, sample and records were produced by PW1 on 09.01.2003. PW6 registered Ext.P8 crime and occurrence report. He produced the property before court through Ext.P10. Ext.P10 shows that the properties reached the Judicial First Class Magistrate's Court, Chalakkudy on 10.01.2003 itself. Matters being so, there is absolutely no delay in the production of the contraband and sample before the court below.

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Ext.P7 is the certificate of chemical analysis,

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which shows that the sample contained 38.38% by volume of ethyl alcohol. On going through the entire evidence and records, this Court does not find anything to interfere with

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Crl.A.413/2009

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: 4 :

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the conviction passed by the court below. It has clearly come out that the accused has committed the offence punishable under Section 8(2) of the Abkari Act. Matters being so, the conviction passed by the court below is not liable to be interfered with.

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Regarding sentence, learned counsel for the appellant has pointed out that the sentence imposed by the court below is highly excessive. The quantity of contraband involved is only 3 litres of arrack. Considering the facts and circumstances of the case and by relying on the decision of the Apex Court in Sasikumar Vs. State of Kerala [2012 (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 maximum possible leniency in the question of sentence. This Court is satisfied that a sentence of simple imprisonment for two months and to pay a fine of ₹1 lakh, in default to undergo a sentence of simple

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Crl.A.413/2009

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: 5 :

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imprisonment for 15 days more, will meet the ends of justice in this 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 imprisonment for two months and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for 15 more days. 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/22/08

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// True Copy //

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PA to Judge

Shaji v. State of Kerala

Case brief

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What did the court decide?

Shaji v. State of Kerala

Case brief

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