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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLLATE JURISDICTION

CRIMINAL     APPEAL     NO.1987     OF     2012   (ARISING OUT OF SLP(CRL.) NO.2025 OF 2012)

SASIKUMAR & ANR. APPELLANTS

                  VERSUS

STATE OF KERALA                RESPONDENT

J     U     D     G     M     E     N     T   

Aftab     Alam,     J  .

1. Leave granted.

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.  

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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.  

6. The accused No.1 Narayanan apparently accepted the judgment of the  

High Court and has not preferred any special leave petition against the High  

Court judgment.  The other two accused, i.e., the appellants are before this  

Court in the present appeal.

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7. We have heard Mr. R. Basant, learned counsel for the appellants and we  

have gone through the materials on record. We find that both the trial court  

and the High Court have meticulously considered the evidences led by the  

prosecution and have rightly arrived at the conclusion in regard to the  

appellants’ guilt.  Insofar as the conviction of the appellants under Section  

8(1) of the Abkari Act is concerned, there is no scope for any interference  

and we uphold the conviction of the appellants as recorded by the trial court  

and affirmed by the High Court.

8. Mr. Basant, however, urged before us to take a lenient view in regard to  

the sentence awarded to the appellants.  

9. On the question of sentence, the High Court in paragraph 19 of its  

judgment has made the following observations:-

“It is relevant to note that at the time of registration of the  crime, first accused was at the age of 57 and accused Nos.2 and  3 were at the age of 42 and 48 respectively.  Now six years are  over. Therefore, first accused will be at the age of 63, second  accused at the age of 48 and third accused at the age of 54.  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.”

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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.

13. Before parting with the record of the case, we would like to  

point out that Section 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

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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 Section 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.    

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