Sentence of imprisonment must be modified in accordance with period of incarceration already undergone: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY THE 05TH DAY OF FEBRUARY 2021 16TH MAGHA 1942 CRL.A.No.297 OF 2007 AGAINST THE ORDER DATED 23 01 2007 IN SC 358 2005 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.IIIMANJERI APPELLANT ACCUSED CHERKULATH SURESH AGED 34 YEARS S O. KUMARAN CHERKULATH PACHATTIRI AMSOM PERIYAPPURAM DESOM BY ADV. SRI.K.M.SATHYANATHA MENON BY ADV. ARUN KUMAR RESPONDENTS COMPLAINANT & STATE THE EXCISE INSPECTOR EXCISE RANGE OFFICE TIRUR THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA HIGH COURT BUILDINGS HIGH COURT ROAD ERNAKULAM KOCHI 682 031 BY PUBLIC PROSECUTOR ADV.DHANIL M.R THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03 02 2021 THE COURT ON 05 02 2021 DELIVERED THE FOLLOWING CRL.A.No.297 OF 2007 Dated this the 5th day of February 2021 The appellant is the accused in SC.No.358 2005 on the files of the Additional Sessions Court Fast Track Court No.III Manjeri. He was found guilty for the offence under Section 8(1 of the Abkari Act and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 00 000 in default to undergo simple imprisonment for six months by judgment dated 23.01.2007. The appellant assails the aforesaid conviction and 2. The prosecution alleged that on 24.12.2004 at around 6.50 a.m. the Excise Circle Inspector while on patrol duty found the accused in possession of five litres of illicit arrack carried by him for sale in a can. After completing the formalities and arrest of the accused the crime was registered. After completion of investigation and other statutory requirements the final report was filed. On noticing the existence of a case exclusively triable by a Court of Session the learned Magistrate referred the case to the Court of 3. In order to prove the prosecution case PWs 1 to 5 CRL.A.No.297 OF 2007 were examined and Exts.P1 to P8 were marked apart from material objects MO1. After analysing the evidence adduced in the case the learned Sessions Judge found the accused guilty and convicted him and imposed the sentence as mentioned earlier 4. I have heard Adv.K.M.Sathyanatha Menon along with Ad.Arun Kumar as well as the learned Public Prosecutor Adv.Dhanil 5. The learned counsel for the appellant vehemently contends that the prosecution case cannot be believed at all since there are no independent witnesses who were examined to prove the seizure of the contraband article from the accused. He also pointed out that though PW1 was examined to prove the seizure of the contraband articles from the appellant he turned hostile and though questions were put to him by the prosecution nothing beneficial to the prosecution were elicited. The learned counsel enthusiastically canvassed that in such circumstances the benefit of doubt atleast must be given to the accused 6. The learned Public Prosecutor on the other hand argued that the case of the prosecution was clearly proved in the instant case and that there was no basis for the contention of the appellant that he should be given the benefit of doubt CRL.A.No.297 OF 2007 7. I have considered the rival contentions. On 24.12.2004 the accused was alleged to have been apprehended by the Excise Inspector and his team of officers who were on patrol duty. Even though PW1 turned hostile to the prosecution and denied of having seen the seizure of arrack from the accused the evidence of official witnesses are convincingly clear that the accused was apprehended along with the arrack. In spite of severe cross examination the official witnesses stood firm regarding the seizure of arrack from the accused. In the aforesaid circumstances I am of the view that the finding of the trial court that even though PW1 had turned hostile there was sufficient evidence to prove the seizure of the contraband from the accused. PWs 2 and 3 have also clearly spoken to about the manner in which the accused was found possessing a can containing arrack and the manner in which the accused was apprehended. I agree with the said conclusion arrived at by the learned Sessions Judge. 8. It is seen from Ext.P6 forwarding note that the same was prepared on 24.12.2004 with the sample seal of PW5 and it was presented before the Judicial First Class Magistrate s Court Tirur on the same day itself. Though MO1 was returned for safe custody the sample was retained by the court and was forwarded to the Regional CRL.A.No.297 OF 2007 Chemical Examiners Laboratory later. Thus no procedural infirmity could be found out and the prosecution had clearly proved that the sample taken from MO1 was sent for chemical analysis resulting in Ext.P7 certificate. Ext.P7 states that the sample involved in the offence showed the presence of Ethyl Alcohol having 23.68 by volume. The Learned Sessions Judge after an elaborate consideration of the entire materials and the evidence adduced in the case concluded that the accused has committed the offence alleged against him. After appreciating and considering the evidence adduced in the case I am of the view that the learned Sessions Judge was justified in concluding that the accused is guilty of the 9. The learned counsel for the appellant in the alternative had argued that the sentence of imprisonment imposed upon the accused is too harsh in the nature of the case that was alleged against him. It was also pointed out that the incident occurred more than 15 years ago and that the quantity involved was only minimal and that after the incident involved in this case there had been no allegations of involvement of the appellant in a crime of any nature. 10. On an appreciation of the aforesaid submissions of the learned counsel for the appellant I am of the view that taking CRL.A.No.297 OF 2007 into reckoning the long passage of time and also taking note of the fact that the appellant had already undergone incarceration from 24.12.2004 till 07.02.2005 a modification can be made to the sentence imposed. The sentence of imprisonment imposed upon the appellant shall therefore stand modified to the period already undergone. The fine amount imposed by the learned Sessions Judge being the minimum fine provided under law the same is affirmed. In the aforesaid circumstances while confirming the conviction of the appellant under Section 8(1) of the Abkari Act the sentence of imprisonment imposed by the learned Sessions Judge is modified to the period already undergone. However the sentence of fine imposed and the default sentence imposed by the learned Sessions Judge stands affirmed The appeal is allowed in part as above. Sd BECHU KURIAN THOMAS JUDGE

Summary: The sentence of imprisonment imposed by the court must be modified in accordance with the period of incarceration already undergone. Therefore, while sentencing a person for imprisonment or upholding the judgment of the lower court in an appeal, the appellant court must consider the term of imprisonment already undergone by the convicted person. This principle was upheld by the Kerala High Court presided by J. Bechu Kurian Thomas in the case of CHERKULATH SURESH vs THE STATE OF KERALA &amp; anr. [CRL.A.No.297 OF 2007]. The appellant i.e. the accused possessed Ethyl Alcohol 23.68% by volume and was found guilty for the offence under Section 8(1) of the Abkari Act; sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months by judgment dated 23.01.2007. The prosecution alleged that on 24.12.2004, the Excise Circle Inspector, found the accused in possession of five litres of illicit arrack carried by him for sale in a can. On noticing the existence of a case exclusively triable by a Court of Session, the learned Magistrate referred the case to the Court of Sessions. The learned counsel for the appellant vehemently contended that no independent witnesses who were examined to prove the seizure of the contraband article from the accused and that the witness turned hostile and though questions were put to him by the prosecution, nothing beneficial to the prosecution were elicited. The learned counsel enthusiastically canvassed that in such circumstances, the benefit of doubt, atleast, must be given to the accused.