Dharmappa Shettingara @ Narayana Shettigara vs State of Kerala and Station House Officer

B. Kemal Pasha, J.—The accused in S.C. No. 585 of 2000 of the Additional Sessions Court (Adhoc II), Kasaragod, who stands convicted u/s 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for three more months, has come up in appeal. The prosecution case is that, on 1.10.1999 at 6 p.m., while PW 3 Sub Inspector of Police, Manjeshwar along with police party were on patrol duty and when they reached at Hosangadi, they could see the appellant coming by a motorbike with a bundle in a sack. They intercepted him and on examination the sack was found containing 150 packets each containing 100 ml of Karnataka manufactured arrack. The appellant was placed under arrest and the contraband was seized through Ext. P1 mahazar. From six packets, two bottles each containing 375 ml of arrack were drawn. PW 3 reached the police station with the appellant and the contraband and registered Ext. P3 FIR. He prepared Ext. P4 scene mahazar. The accused was produced before court. The contraband was produced before court through Ext. P5 property list. Ext. P6 forwarding note was filed for subjecting the samples to chemical analysis. On obtaining Ext. P7 certificate of chemical analysis, the final report was filed.

On the side of the prosecution PWs 1 to 3 were examined and Exts. P1 to P8 were marked. MOs 1 to 3 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable u/s 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

Heard the learned counsel for the appellant and the learned Public Prosecutor. According to the learned counsel for the appellant, apart from the evidence of PW 3, there is no other evidence in this case. It is also argued that the evidence adduced by the prosecution is insufficient to connect the appellant with the crime. It has been further argued that the contraband was belatedly produced before court. Another argument forwarded by the learned counsel is that the identity of the appellant is seriously in question.

PW 3 has in his evidence clearly revealed the incident in detail. According to PW 3, he could see the appellant riding on the motorbike with a sack, which on examination was found containing 150 packets of arrack. The contraband was seized through Ext. P1 mahazar. The contents of Ext. P1 clearly corroborates the versions of PW 3. Two samples of 375 ml each were drawn from the contraband. The appellant was placed under arrest through Ext. P2 arrest memo. PW 3 has registered Ext. P3 FIR. He prepared Ext. P4 scene mahazar. It seems that PW 3 has produced the contraband before court through Ext. P5 property list and he filed a forwarding note, the copy of which is marked as Ext. P6. Ext. P7 is the certificate of chemical analysis which reveals that the samples contained 32.11 and 32.05% by volume of ethyl alcohol.

PW 1 was an independent witness cited by the prosecution. Regarding the involvement of the appellant he has turned hostile to the prosecution. Regarding all other aspects, he has supported the prosecution. According to him on 1.10.1999 at 6 p.m. while he was standing at the bus stop at Hosangadi, he saw a motorbike bearing Reg. No. KL-14-2263 coming to that place and stopping abruptly. The rider of the motorbike got down and took to heels. Immediately, a police jeep also came over there. According to him, he saw the seizure of arrack from the motorbike. When he was asked whether it was the appellant who was the person ran away from the spot, he answered that he did not know the person. At the same time, he admitted that the appellant was known to him for the last more than 15 years. In such a case, his version that he did not know whether it was the appellant who was the person who ran away from there, can be taken only with a pinch of salt. It seems that he deliberately attempted to aid the appellant.

Regarding the motorbike, PW 2 was the registered owner. According to PW 2, he sold the motorbike to one Krishna Shenoy about 12 years back. It is a fact that the said motorbike was not in the custody of PW 2 who was the registered owner. He has admitted that he had sold the same to some other person.

Even though the learned counsel for the appellant has challenged the identity of the appellant as the accused in the case, in this particular case it has to be noted that the appellant was arrested from the spot. There is little scope in such a case to raise a question of identity. PW 3 has identified the appellant. In the time of cross-examination of PW 3, the identity of the appellant was not at all challenged. During the cross-examination of PW 3 also, the appellant had no case that some other person who came by the motorbike ran away from the spot.

On going through the evidence as a whole and the records in this case, it seems that there is sufficient evidence to connect the appellant with the offence u/s 55(a) of the Abkari Act. There is absolutely nothing to interfere with the conviction passed by the court below. Regarding the sentence, the learned counsel for the appellant has submitted that the appellant is hailing from very poor circumstances and he is a daily labourer. The learned counsel for the appellant has strenuously canvassed for the maximum leniency of this Court in the question of sentence.

In Sasikumar and another v. State of Kerala (2012 KHC 4713) (SC), an identical situation was dealt with by the Apex Court. In the said decision, it was held in paragraph 11 as follows:

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.

It was held in paragraph 13 as follows:

Before parting with the record of the case, we would like to point out that S. 8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs. 1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs. 1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under S. 8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.

Considering the facts and circumstances and the poor circumstances in which the appellant is placed, I am satisfied that a sentence of simple imprisonment for six months and to pay a fine of Rs. 1,00,000/-, in default, to undergo simple imprisonment for two more months, will meet the ends of justice in this case.

In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:

The appellant is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh only), in default, to undergo simple imprisonment for two more months. It is made clear that the appellant is entitled to set off, of the period already undergone by him in custody in connection with the investigation, inquiry and trial of this case, u/s 428 Cr.P.C.