Prakasan vs State Of Kerala
2021 Latest Caselaw 17404 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
   WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                       CRL.A NO. 2042 OF 2008
AGAINST THE JUDGMENT IN SC 548/2005 OF ADDITIONAL DISTRICT AND
       SESSIONS JUDGE, FAST TRACK (ADHOC I), KOZHIKODE
APPELLANT/ACCUSED:

            PRAKASAN,
            AGED 35 YEARS,
            S/O.RAMAN, KAYAKKAL HOUSE,
            SIVAPURAM AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE.

            BY ADV SRI.NIDHI BALACHANDRAN



RESPONDENT/STATE:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

            BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWICK




     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2042 OF 2008                   2




                                JUDGMENT

This appeal has been filed challenging the conviction and

sentence imposed on the appellant/accused in S.C.No.548/2005 on

the file of the Additional District and Sessions Judge, Fast Track

(Adhoc I), Kozhikode.

2. The appellant/accused was chargesheeted alleging

commission of offence under Sections 8(1) and 8(2) of the Abkari

Act.. The prosecution case is that on 5.9.2003, at about 12.30 pm.,

the appellant/accused was apprehended while in possession and

transporting 5 litres of illicit arrack in a white plastic can. On the

appellant/accused pleading not guilty, the matter was posted for

trial. The prosecution examined PWs 1 to 5 and Exts.P1 to P8 and

MO1 were marked and identified. PWs1 and 2, who are the

Preventive Officers of the Excise Department, have deposed

regarding the apprehension of the appellant/accused and the

seizure of illicit arrack, drawing of samples and preparation of

seizure mahazar. PW3, the Village Officer had deposed that he

prepared Ext.P8 sketch regarding the place of occurrence. The

independent witness, PW4 had deposed that he had signed the

label on MO1, however that he had signed as requested by the

excise officials and he had not seen the accused being arrested by

the excise officials. PW5, who is the investigating officer has

deposed regarding the investigation of the case and filing of the

charge.

3. On a reading of the evidence of PWs 1, 2 and 5, it is

rather clear that the contraband article was seized from the

possession of the petitioner. There is no defect either of the

sampling or in the procedure adopted by the excise authorities in

drawing the sample and forwarding the same for chemical analysis.

The chemical analysis report shows that the sample contained

28.82% volume of Ethyl alcohol which is a clear proof of the fact

that the materials seized from the appellant/accused was illicit

arrack. The appellant/accused has not been able to dislodge the

case foisted by the prosecution in any manner. The seizure of the

articles from the appellant having been proved and the chemical

analysis report having proved that the seized article was illicit

arrack, the weight of the evidence is against the appellant/accused.

In the light of the aforesaid facts, I have no hesitation to hold that

the conviction of the appellant/accused for having committed the

offence under Sections 8(1) and 8(2) of the Abkari Act is justified.

4. The only remaining question is regarding the sentence

imposed on the appellant/accused, who has been sentenced to

undergo rigorous imprisonment for a period of two years and to

pay a fine of Rs.1,00,000/- lakh under Sections 8(1) and 8(2) of the

Abkari Act. In default of payment of fine, the appellant/accused

has been sentenced to undergo rigorous imprisonment for a further

period of six months. It has also been ordered that any period of

detention in connection with the case shall be set off against the

sentence.

5. The learned counsel for the appellant would vehemently

contend that the sentence imposed on the appellant/accused is too

harsh, considering the fact that there is no finding that the

appellant/accused is a habitual offender and that he had earlier

antecedents of engaging in illicit manufacture and sale of arrack.

6. The learned Public Prosecutor would submit that

considering the gravity of the offence, the sentence imposed on the

appellant/accused is justified and should not be interfered with.

He would also submit that Section 8(2) of the Abkari Act provides

that the term of imprisonment which may be imposed, may extend

upto ten years and the fine of not less than Rs.1,00,000/-.

7. Considering the facts and circumstances of the case,

including the fact that the appellant/accused is not alleged to be a

habitual offender, I am of the opinion that the sentence imposed on

the appellant/accused can be reduced.

In the result, this appeal is allowed in part. The conviction

imposed on the appellant/accused for having committed the

offence under Sections 8(1) and 8(2) of the Abkari Act is confirmed.

The sentence imposed on the appellant/accused is modified to

simple imprisonment for a period of six months with a fine of

Rs.1,00,000/- under Sections 8(1) and 8(2) of the Abkari Act. In

default of payment of fine, the appellant/accused will undergo a

further period of simple imprisonment for a period of six months.

The period of detention undergone in connection with the case

shall be allowed set off, in accordance with law.

Sd/-

GOPINATH P.

JUDGE

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