Page 1

          REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  397  OF 2013 (Arising out of S.L.P (Crl.) No.9343 of 2012)

Rajamani …Appellant

Versus

State of Kerala …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The appellant was prosecuted for an offence punishable  

under Section 55(a) of the Kerala Abkari Act (1 of 1077). He  

was  found  guilty  by  the  Trial  Court  and  sentenced  to  

undergo imprisonment for a period of seven years besides a  

fine  of  rupees  one lakh.  In  default  of  payment  a  further  

sentence  of  one  year  simple  imprisonment  was  also  

awarded.  The  co-accused  in  the  case  was,  however,  

acquitted by the Trial Court.

1

Page 2

3. Aggrieved by the conviction and the sentence awarded  

to him, the appellant preferred Criminal Appeal No.1345 of  

2003 before  the  High  Court  of  Kerala  at  Ernakulam.  The  

High Court reappraised the evidence on record and came to  

the conclusion that the charge framed against the appellant  

had been rightly held to be proved by the Trial Court.  The  

conviction  recorded  against  the  appellant  was  accordingly  

affirmed  but  the  sentence  awarded  to  him  reduced  from  

seven  years  to  five  years  but  with  an  enhanced  fine  of  

rupees  two  lakhs  in  default  of  payment  whereof  the  

appellant  was  to  undergo  a  further  imprisonment  of  two  

years.   

4. When the special leave petition filed by the appellant  

against  the  above  judgment  and  order  came  up  for  

preliminary  hearing  before  this  Court  on  26th November,  

2012,  we  issued  notice  to  the  respondent  limited  to  the  

question of quantum of sentence awarded to the appellant.  

We have accordingly heard learned counsel for the parties  

on that limited question.  

2

Page 3

5. Section 55 (a) of the Act makes any contravention of  

the Act or of any rule made thereunder in regard to “import,  

transport, transit or any intoxicating drug” punishable with  

imprisonment for a term that may  extend to ten years and  

a fine which shall not be less than rupees one lakh. It reads:  

“55.  For  Illegal  import,  etc.  –  Whoever  in  contravention of this Act or of any rule made under   this Act –

(a) Imports,  exports,  transports,  transits  or   possesses liquor or any intoxicating drug; or

xxx xxx xxx

shall be punished.-

(1)  for  any  offence  other  than  an  offence   falling  under  clause  (d)  or  clause  (e),  with   imprisonment for a term which may extend to   ten years and with fine which shall not be less   than rupees one lakh and

xxx xxx xxx”

6. The appellant is a driver by profession.  He was found  

carrying 218 plastic cans. Each one of those cans contained  

33 litres of spirit.  The quantity of contraband was thus very  

large. That could and ought to be one of the factors to be  

taken into consideration while determining the quantum of  

sentence awarded to him.  What was equally important is  

3

Page 4

whether the appellant was the owner of the contraband or  

had any financial interest in its possession or transportation.  

There is nothing on record to suggest that the appellant had  

any such interest.  The Investigating Officer ought to have  

made an endeavour to identify those behind the purchase  

and transport of the contraband.  He should have looked for  

the consignor and consignee both.  That is because arrest  

and prosecution of the driver of the lorry in which the goods  

were being carried can hardly be enough to weed out illegal  

trade in liquor.  So long as the kingpins are not identified  

and brought to book the purpose sought to be served by the  

law prescribing a deterrent punishment cannot be achieved.  

It  is  common  knowledge  that  in  matters  of  illegal  trade  

whether in liquor, drugs or other contrabands, the smaller  

fish only gets caught while the sharks who flourish in such  

trade often go scot free.  The arrest and prosecution of the  

carriers of contrabands is in that view mere lip service to the  

avowed  purpose  underlying  the  legislation.  No  reason  is  

forthcoming in the present case why no effort was made by  

the Investigating Agency to expose the racketeers without  

whose support and involvement such a big consignment of  

4

Page 5

spirit could not have been purchased nor its transportation  

arranged.   

7. In the totality of the above circumstances and the fact  

that the petitioner was only a driver of the lorry in which the  

goods were being transported, we are inclined to reduce the  

sentence  awarded  to  him from five  years  to  three  years  

rigorous  imprisonment  and a  fine  of  rupees  one lakh.  In  

default  of  payment  of  fine  the  appellant  shall  suffer  

imprisonment for a further period of one year. The orders  

passed by the trial  Court  and the High Court  shall  stand  

modified to the above extent.

8. This appeal is disposed of in the above terms.  

……………………...……………….……...…J. (T.S. THAKUR)

……………………...………………….…...…J. (SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi March 6, 2013

5