Partly allowed

Achuthan v. State of Kerala

Kerala HC5 Aug 2016CRL.A/607/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal in part. It upheld the conviction for transporting arrack but modified the sentence to three months simple imprisonment and a fine of ₹1 lakh, relying on the quantity of contraband and a Supreme Court precedent.

What did the court decide?

Conviction maintained; sentence modified to simple imprisonment for three months and a fine of ₹1 lakh with 15 days additional simple imprisonment in default.

Achuthan Vs State of Kerala — Property and Title | 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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FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938

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CRL.A.No. 607 of 2009 (A)

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-------------------------SC.NO. 615/2007 OF ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT NO.1) THRISSUR

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APPELLANT/ACCUSED:

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ACHUTHAN,S/O.NARAYANAN, AGED 49 YEARS, OREPADAM HOUSE, CHERUTHURUTHI, THALAPPILLY TALUK.

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BY ADVS.SRI.SIVARAM

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SRI.SHANKAR V.

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RESPONDENT/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SMT. P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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CRL.A.NO.607/2009

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX A JUDGMENT BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK-1, THRISSUR, DATED 17/02/2009

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.S.TO JUDGE

sts

B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 607 of 2009 ............................................................... Dated this the 5^th day of August, 2016

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J U D G M E N T

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The appellant is the accused in S.C.No.615/07 of the Additional Sessions Court(Adhoc-I), Thrissur, 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 two more months.

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The prosecution case is that on 19.08.2003 at 1 p.m., the accused was found transporting 5 litres of arrack through Chammanamkunnu Kadavu road, Palloor Village, in contravention of the provisions of the Abkari Act. The offence was detected by PW4, Excise Inspector, Wadakkanchery. He seized the contraband through Ext.P1 mahazar, and a sample of 200 ml was drawn. He placed the accused under arrest. On reaching the excise office, he registered Ext.P4 crime and occurrence report. All the properties including the sample were produced before court

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Crl. Appeal No. 607 of 2009

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-: 2 :-

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on the same day itself through Ext.P5 property list. He conducted the investigation and filed the complaint on getting Ext.P9 certificate of chemical analysis.

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On the side of the prosecution, PWs.1 to 4 were examined and Exts.P1 to P9 were marked. MOs.1 and 2 were 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 the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant has argued that there is no sufficient evidence to convict the accused for

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the offence under Section 8(2) of the Abkari Act and therefore, the conviction and sentence passed by the court below are liable to be set aside.

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PW4 has proved the incident. According to him, on seeing him and party, the accused, after dropping the

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Crl. Appeal No. 607 of 2009

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-: 3 :-

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bag containing the contraband, ran away. They chased the accused and caught him. The bag was found containing a black can which contained five litres of arrack. A quantity of 200 ml was drawn as sample. He placed the accused under arrest and seized the properties through Ext.P1 mahazar. On reaching the excise office, he registered Ext.P4 crime and occurrence report. The accused, along with the properties were, produced before court on the same day itself. Ext.P5 property list clearly shows that all the properties including the sample were produced before court on 19.08.2003 itself.

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PW4 conducted the investigation and filed the complaint on getting Ext.P9 certificate of chemical analysis, which shows that the sample contained 34.76% by volume of ethyl alcohol.

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The evidence of PW4 is fully corroborated by the evidence of PW1 Preventive Officer of Wadakkanchery excise range, who was also present along with PW4 at the

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Crl. Appeal No. 607 of 2009

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time of seizure, arrest etc. There is absolutely nothing to disbelieve the versions of PW1 and PW4. Even though PWs.2 and 3, who were the independent witnesses, had turned hostile to the prosecution, they have admitted their signatures in Ext.P1. On going through the entire evidence, records and on hearing either side, this Court is satisfied that there is sufficient evidence to convict the accused for the offence under Section 8(2) of the Abkari Act. Therefore, there is absolutely nothing to interfere with the conviction passed by the court below.

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Regarding the sentence, the learned counsel for the appellant has canvassed for leniency in the question of sentence. According to the learned counsel for the appellant, considering the meagre quantity of contraband involved in this case, the sentence imposed by the court below is too harsh.

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By considering the meagre quantity of contraband involved in this case and by relying on the decision of the

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Crl. Appeal No. 607 of 2009

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-: 5 :-

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Apex Court in Sasikumar v. State of Kerala [2012 (4) KLT 867 (SC)] , this Court is satisfied that a sentence of simple imprisonment for three 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 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 three months 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.”

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// True copy //

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P.S. to Judge.

Achuthan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Achuthan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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