IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRL.A.No. 2073 of 2006() ------------------------ SC.515/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.290/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA CRIME NO.54/1998 OF AMARAVILA EXCISE RANGE .................... APPELLANT: ACCUSED ------------------ RAJU, S/O.JANAMUTHAN NADAR, KALAVANTHALACKAL VEEDU, VATTAVILA, CHENKAL VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.BLAZE K.JOSE RESPONDENTS: COMPLAINANT ------------------------ THE STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, AMARAVILA EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.2073 of 2006 ------------------------------------- Dated this the 31st day of July, 2008 The appellant in this appeal assails the verdict of guilty, conviction and sentence imposed on him by the Sessions Court under Section 58 of the Kerala Abkari Act. He has been found guilty, convicted and sentenced under Section 58 of the Kerala Abkari Act to undergo R.I for a period of 2 years and to pay a fine of Rs.1 lakh and in default to undergo R.I for a further period of 3 months. 2. The crux of the charge against the appellant is that on 13.11.98, he was found to keep in his possession 2 ½ litres of arrack in a 5 litre black jerry can. He was intercepted by the excise officials. He was arrested. Seizure of the contraband article was effected. Investigation was conducted. Final report was filed alleging commission of the offence punishable under Section 55(a) of the Kerala Abkari Act. Cognizance was taken by the learned Magistrate on the final report. The case was committed to the Court of Session. The appellant denied the offence alleged against him. Thereupon the prosecution examined Pws 1 to 4 and proved Exts.P1 to P7. M.O 1 was also marked. Crl.Appeal. No.2073 of 2006 2 3. No defence evidence was adduced. The accused took up a defence of total denial. 4. The learned Sessions Judge on an anxious evaluation of all the relevant inputs, came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 58 of the Kerala Abkari Act. Accordingly the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. 5. The appellant preferred this appeal. The appeal was admitted and as per order dated 30.10.06, the execution of the sentence imposed on the appellant was suspended subject to conditions. The appellant could not comply with the condition regarding the deposit of a part of the fine amount and in these circumstances the appellant has been taken into custody and he continues in custody from 07.02.07 serving the sentence of imprisonment. The learned counsel for the appellant had prayed that the appeal may be taken up out of turn and accordingly as directed by this Court the matter has come up for hearing now. 6. The learned counsel for the appellant submits that at this point of time the appellant does not want to assail the verdict of guilty and conviction. The learned counsel for the Crl.Appeal. No.2073 of 2006 3 appellant only prays that in any view of the matter the sentence imposed on the appellant is grossly excessive and perversely disproportionate to the alleged complicity of the appellant even if it be assumed that he is guilty. The learned Public Prosecutor before the court below had filed an affidavit to assert that the appellant had been convicted in one other prosecution under the Kerala Abkari Act also. I am satisfied that the verdict of guilty and conviction is absolutely justified. In the absence of challenge on that aspect it is not necessary for me to advert to facts in any greater detail. 7. The short point that arises for consideration is whether the sentence imposed is excessive and it requires modification. Having considered all the relevant circumstances, including the nature of the offence alleged, the quantity of the contraband article found in the possession of the appellant and the length of time that the appellant has already spent in prison, I am satisfied that a lenient view can be taken and the sentence imposed on the appellant can be modified. 8. In the result: a) This Appeal is allowed in part; b) The verdict of guilty and conviction of the appellant under Section 58 of the Kerala Abkari Act are upheld; Crl.Appeal. No.2073 of 2006 4 c) The impugned sentence of fine imposed and the default sentence are upheld; d) But the substantive sentence of R.I for a period of two years is modified and reduced to R.I for a period of one year. 9. Communicate the judgment to the court below and the prison authorities and through the prison authorities to the appellant forthwith. The modified sentence must have been served already by the appellant, who is said to be in custody from 07.02.07. If further detention of the appellant is not required in connection with any other case, he shall be released from custody forthwith. (R.BASANT, JUDGE) rtr/- Crl.Appeal. No.2073 of 2006 5 GIST OF THE JUDGMENT xxxxxxxxxxxxxxxxx In the result: a) This Appeal is allowed in part; b) The verdict of guilty and conviction of the appellant under Section 58 of the Kerala Abkari Act are upheld; c) The sentence of fine imposed and the default sentence are upheld; d) But the substantive sentence of R.I for a period of two years is modified and reduced to R.I for a period of one year. Crl.Appeal. No.2073 of 2006 6 Communicate the judgment to the court below and the prison authorities and through the prison authorities to the appellant forthwith. The modified sentence must have been served already by the appellant, who is said to be in custody from 07.02.07. If further detention of the appellant is not required in connection with any other case, he shall be released from custody forthwith. (R.BASANT, JUDGE) rtr/-