Sasikumar & Anr vs State Of Kerala

2. The two appellants (who are accused Nos.2 & 3), along with one Narayanan (accused No.1) have been convicted under Section 8(1) read with 8(2) of the (Kerala) Abkari Act. They were sentenced by the trial court to rigorous imprisonment for three years and a fine of Rs.1,00,000/- with the default sentence of one year rigorous imprisonment. In appeal the High Court, though maintaining the conviction, reduced the sentence to rigorous imprisonment for 18 months and the default sentence for failure to pay the fine, to rigorous imprisonment for a period of six months. The High Court also directed that the accused would be entitled to get the benefit of set off under Section 428 of the Code of Criminal Procedure.

3. According to the prosecution case, on March 12, 2005 at about 11:15 AM the accused were seen coming in an auto-rickshaw bearing registration No.KL-03-F-3146. The auto-rickshaw belonged to and it was being driven by appellant No.2. On seeing the police party, all the three occupants ran away leaving the auto-rickshaw at the spot. On its inspection, the police found two (2) 20 litres cans containing 40 litres of arrack lying inside the auto-rickshaw and, thus, according to the police, the accused had committed the offence under Section 8(1) of the Abkari Act.

4. The three accused were tried by the Court of the Additional District and Sessions Judge (Ad-hoc) Fast Track Court-I, Pathanamthitta who, by his judgment and order dated June 22, 2010 in Sessions Case No.682/2006 convicted and sentenced them, as noted above.

5. The three accused came to the High Court in two separate appeals, being Criminal Appeal No.1338 of 2010 preferred by the two appellants before this Court and Criminal Appeal No.2198 of 2010 submitted to the High Court as jail appeal on behalf of accused No.1 Narayanan. The High Court disposed of both the appeals by judgment and order dated August 4, 2011. It maintained their conviction but modified and reduced their sentence, as noted above.

The prosecution has no case that the accused are habitual offenders. Having regard to the above facts and the mitigating circumstances, I am of the view that the substantial sentence imposed against the accused requires reconsideration. Thus, according to me, 18 months rigorous imprisonment will be sufficient to meet the ends of justice. While confirming the sentence of fine, the default sentence can be reduced to six months. In the result, in modification of sentence imposed by the trial court, the accused are sentenced to undergo rigorous imprisonment for 18 months each and to pay fine of Rs.1 lakh each and in default, each of them is directed to undergo simple imprisonment for a period of six months instead of one year rigorous imprisonment ordered by the trial court. The appellants are entitled to get the benefit of set off under Section 428 of Cr.P.C.”

10. We agree with the view taken by the High Court.

11. We would like to further observe that from the facts of the case it is evident that the appellants and the other accused in this case are not the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they constitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days.

12. Accused No.1, Narayanan is not before this Court presumably on account of poverty, as his appeal to the High Court was also a jail appeal. We find there is no distinction between the case of the appellants and the case of accused No. 1 and, accordingly, extend the relief granted to the two appellants to accused No.1 Narayanan as well.

14. In the light of the discussion made above, the appeal is allowed to the limited extent, as directed above.

………………….....................J (Aftab Alam) .………………….....................J (Ranjana Prakash Desai) New Delhi, December 4, 2012