SLP(Crl.) No.8113/2017

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 22  OF 2019

(@SPECIAL LEAVE PETITION (CRIMINAL) NO. 8113 OF 2017)

LALICHAN   ....APPELLANT(S)

 VERSUS

THE STATE OF KERALA    ....RESPONDENT(S)

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This  Criminal  Appeal  is  filed  by  the  sole

accused in S.C. No. 274 of 2013 on the file of the

First Additional Sessions Judge, Thodupuzha, aggrieved

by the conviction recorded and sentence imposed by the

Judgment dated 22.11.2013 and the Judgment of the High

Court of Kerala at Ernakulam dated 25.01.2017 passed

in Criminal Appeal No. 1701/2013.

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3. The appellant herein was prosecuted for offence

punishable under Section 8(2) and Section 63 of Kerala

Abkari Act. It was the case of the prosecution that

when  the  Excise  Inspector  Peerumedu  Excise  Range

conducted  a  search  in  the  House  of  the  Appellant

accused  on  08.01.2011,  he  was  found  to  be  in

possession of 4.5 litres of arrack in a plastic can

and 3.750 litres of Indian Made Foreign Liquor.  

4. It is alleged that such possession is illegal

and in violation of the Kerala Abkari Act. He was

arrested  and  contraband  was  seized  by  conducting

seizure mahazar.

5. For  the  aforesaid  violations,  he  was

chargesheeted and the prosecution has examined four

witnesses, including, the detecting officer and marked

Exhibits P1 to P9 and MO1 to MO3 were also identified

during trial. On appreciation of evidence, the Trial

Court by Judgment dated 22.11.2013, found the accused

guilty and was convicted under Sections 8(2) and 63 of

the Abkari Act.

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6. On  conviction,  he  was  sentenced  to  undergo

simple  imprisonment  for  one  year  and  fine  of

Rs.1,00,000/-( Rupees One Lakh) under Section 8(2) of

the Act, and to pay a fine of Rs.5000/-(Rupees Five

Thousand Only) under Section 63 of the Act. Aggrieved

by the said conviction and sentence imposed, he has

filed Criminal Appeal No. 1701/2013 before the High

Court  of  Kerala  at  Ernakulam.  The  High  Court  vide

Judgment  dated  25.01.2017,  while  confirming  the

conviction  recorded  has  modified  the  sentence  by

reducing  the  simple  imprisonment  to  nine  months.

However, the sentence imposed under Section 63 of the

Act was maintained.  

7. When the Special Leave Petition is filed before

this Court by seeking condonation of delay, this Court

vide  Order  dated  13.10.2017,  while  condoning  delay

issued notice confining only to the question of factum

of sentence.

8. We have heard the Counsel for the appellant and

Counsel  for  the  respondent-State  and  perused  the

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Judgment of the Trial Court as well as the High Court

and other material placed on record.

9. During the course of hearing, it is brought to

our notice that the appellant herein was in custody

for  about  thirty-five  days  and,  by  Order  dated

07.09.2017 passed by the Learned Chamber Judge, has

granted exemption from surrendering.

10. Having  heard  the  learned  counsel  on  both  the

sides, seeing the gravity of offence and the quantum

of  liquor  seized  during  search  conducted  on

08.01.2011, we are of the view that the interest of

justice would be met if the imprisonment is reduced to

the period, already undergone by the appellant. As it

stated that he was already in the custody for thirty-

five  days,  we  deem  it  appropriate  to  modify  the

sentence, for the period already undergone. At the

same time, we confirm the penalty imposed by the Trial

Court, as confirmed by the High Court. The penalty

amount, if not paid already, shall be paid within a

period of four weeks from today. The Sentence imposed

in the Judgment of the Trial Court dated 22.11.2013 as

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modified by the High Court Judgment dated 25.01.2017,

stands modified, to the extent indicated above.

11. The  Appeal  is  allowed  in  part  as  indicated

above.  No order as to costs.

.................... J.

[Abhay Manohar Sapre]

.................... J.

[R. Subhash Reddy]

NEW DELHI, JANUARY 07, 2019

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