IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 Crl.Rev.Pet.No. 1400 of 2002() ------------------------------ CRA.124/2000 of ADDL. DISTRICT SESSIONS COURT (FAST TRACK-I), KOZHIKODE CC.173/1996 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------- GOPALAN S/O. CHEKKOTTY, VALIYAPARAMBIL VEETTIL, KIZHUR AMSOM, DESOM, KOYILANDY TALUK. BY ADV. SMT.K.V.RESHMI RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------ 1. THE EXCISE INSPECTOR, KKOYILANDY EXCISE RANGE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.7926/2002 IN CRL.R.P.NO.1400/02 DISMISSED. 8.4.2009 S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.1400 OF 2002 (B) ----------------------------------- Dated this the 8th day of April, 2009 O R D E R This revision is filed by the accused who suffered concurrent verdict of guilty for the offence punishable under Section 55 (a) of the Kerala Abkari Act, for short, the 'Act'. The learned Magistrate, after trial, found him guilty and convicted him thereunder, sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.2,500/- with default term of simple imprisonment for a period of one month more. In appeal, the learned Sessions Judge confirmed the conviction, but remitted the case to reconsider the sentence to be passed against the accused in tune with the statutory minimum prescribed in the imposition of fine for the offence involved. On such a remission, the learned Magistrate reconsidering the question of sentence, directed the accused to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- with default term of simple imprisonment CRL.R.P.1400/02 2 for a period of two months. Against the sentence so imposed, the accused preferred an appeal, which was heard and disposed on merit confirming the sentence passed by the learned Magistrate. Questioning the legality, correctness and propriety of the sentence so imposed, the accused has preferred this revision. 2. The impugned judgment passed in appeal as already indicated arose from an order of sentence from which the Code of Criminal Procedure does not provide an appeal. However, as the appeal has already been disposed on merit, the correctness of the sentence alone is assailed leaving aside the technicalities. I proceed to examine the correctness of the impugned judgment on merits. 3. The learned counsel for the accused submitting that the prosecution of the case had commenced nearly 14 years ago, made a fervent plea for invoking the benevolent provisions of the Probation of Offenders Act in favour of the accused. On the legality of the sentence also, the learned counsel for the accused inviting my attention to Section 29 of the Cr.P.C., submitted that the maximum punishment of fine CRL.R.P.1400/02 3 that can be awarded by the Judicial First Class Magistrate, at the relevant time, was only Rs.5,000/-, and as such, the imposition of fine of Rs.25,000/- even if it had been passed complying with the directions in the remand judgment of the Sessions Judge, has no legal sanctity. 4. Having regard to the submissions made by the counsel and perusing the records of the case and also the judgment passed by the learned Magistrate convicting the accused initially, which was confirmed by the Sessions Judge in appeal, I find in the proved facts and circumstances involved, the plea canvassed for invoking the aid of Probation of Offenders Act in favour of the accused cannot be countenanced. He was found engaged in the sale of arrack and 136 bottles each containing 100 ml were seized from his possession, had been proved by the materials tendered in the case, on which he was convicted under Section 55 (a) of the Act. The large quantity of arrack seized from his possession establishing that he was engaged in sale of illicit arrack disentitle him to have the benefits of the Probation of Offenders Act. As regards the other challenge raised by the learned counsel that the fine imposed by the learned CRL.R.P.1400/02 4 Magistrate is not only excessive, but illegal, since the Magistrate, at the relevant time, was empowered to impose a maximum fine of Rs.5,000/- as under Section 29 of the Cr.P.C., I find considerable force. In an identical case but arising from a complaint filed imputing an offence under Section 138 of the N.I.Act, the provisions of which then in existence, before the amendment empowering the Magistrate to impose fine in excess of Rs.5,000/-, the apex court has held that the Judicial First Class Magistrate cannot impose fine exceeding Rs.5,000/- besides imprisonment. In that decision, namely, Bhaskaran v. Balan (1999 (3) KLT 440 (SC)), it has been held thus: “The Judicial First Class Magistrate trying a case under Section 138 of the N.I.Act cannot impose a fine exceeding Rs.5,000/-, High Court convicting the accused in the same case cannot impose a sentence of fine exceeding the said limit”. So much so, it goes without saying that the direction issued by the Sessions Judge after confirming the conviction and remitting the case again to the Magistrate for imposing sentence as prescribed by the Statute, which exceeded the maximum fine that can be imposed by the Magistrate, and also the imposition of the statutory minimum fine by the Magistrate on such remission and its confirmation CRL.R.P.1400/02 5 of the appeal by the Sessions Judge, all the above, have no sanction of law and were incorrect. In the above circumstances, the sentence against the accused warrants interference. Having regard to the lapse of time, and continuation of the prosecution for the last so many years against the accused, I find that a sentence of simple imprisonment for four months and a fine of Rs.5,000/- with default term of simple imprisonment for one month more would be sufficient to meet the ends of justice. Sentence is modified accordingly. Period of detention, if any, undergone by the accused, needless to point out, shall be given set off in the substantive term of imprisonment imposed. Revision is partly allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.1400 OF 2002 (B) --------------------------------------------------------- O R D E R --------------------------------------------------------- 8th April, 2009