REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1409 OF 2018 (Arising out of S.L.P.(Crl.) No. 6224 of 2017)

Santosh @ Santosh Kumar            ….Appellant(s)

VERSUS

State of Kerala             ….Respondent(s)    

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment

and order dated 13.06.2016  passed by the  High

Court of Kerala at Ernakulam in Crl. A. No.1837 of

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2010 whereby the High Court allowed the appeal in

part by maintaining the conviction but reducing the

sentence imposed on the appellant herein by order

dated 13.09.2010 passed by the Additional Sessions

Court(Adhoc­1), Palakkad in Sessions Case No.221

of 2009.   

3. Few facts need to be mentioned for disposal of

this appeal, which involves a short question.

4. The appellant along with two others were

prosecuted for commission of an offence punishable

under Section 55 (a) of the Abkari Act enacted by

the State of Kerala in Sessions Case No.221/2009

in the Court of Additional Sessions Judge,

Palakkad.  

5. By order dated 13.09.2010,   the Sessions

Judge acquitted  Accused No.  3  but  convicted  the

appellant herein (Accused No. 2) and Accused No.1

and sentenced them to undergo rigorous

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imprisonment for five years and a fine of Rs.1 lakh

and in default of payment of fine, to further undergo

rigorous imprisonment for one year.  

6. The appellant felt aggrieved and filed appeal in

the High Court of Kerala. By impugned order, the

High Court upheld the conviction but interfered in

the quantum of sentence awarded to the appellant

by the Sessions Judge. The High Court reduced the

jail sentence from 5 years to 3 years and maintained

the imposition  of fine  amount  of  Rs.1 lakh being

mandatory for imposition along with jail sentence.

7. The appellant (Accused No.2) felt aggrieved

and filed the present appeal by way of special leave

against the order of the High Court in this Court.  

8. This Court by order dated 07.09.2018 issued

notice of SLP to the respondent (State) confining to

examine only the question relating to quantum of

sentence awarded to the appellant.

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9. Therefore, the short question, which arises for

consideration in this appeal, is whether any case is

made out on facts and in law for interfering in the

quantum of sentence awarded to the appellant

(Accused No. 2) by the High Court.   

10. Heard Mr. Shinoj K. Narayanan, learned

counsel for the appellant­accused and  Mr. Vipin

Nair, learned counsel for the respondent­State.

11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal as indicated below.   

12. The incident in question, which gave rise to

the  appellant's  prosecution,  occurred  in 2007.   It

was in relation to seizure of spirit stored in 58 cans

in one residential house and in one car parked in

the porch of the house.  

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13. Three persons were arrested in connection

with this incident. The appellant was one of them

who,  according to the prosecution,  had taken the

said house on rent. The seizure of the spirit  from

the  house in question  was held illegal and  was,

therefore, held to be an offence punishable under

Section 55(a) of the Abkari Act.  

14. Section 55(1) of the Abkari Act provides that

for any offence other than an offence falling under

clause (d)  or  clause (e), shall  be  punishable  with

imprisonment for a term, which may extend to ten

years and with fine, which shall  not be  less than

Rs.One Lakh.

15. So far as the appellant’s case is concerned, it

falls  under clause  (a), therefore, it is  governed by

Section 55 (1) of the Abkari Act.   

16. From a mere reading of Section 55 (1), it is

clear that insofar as the jail sentence is concerned,

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it may vary and extend up to 10 years depending

upon the facts of each case, but insofar as the fine

amount is concerned, the Court has to impose the

minimum amount of Rs. one lakh.  

17. It is, therefore,  mandatory for the  Court to

impose a fine while awarding jail sentence and

secondly, it cannot be less than Rs. one lakh.

However, the  Court  has  discretion  to impose fine

more than Rs. one lakh depending upon the facts of

each case.

18. It is not in dispute that the appellant has

already undergone  jail sentence of  around 1 year

and  3  months till date and  he still continues to

remain in jail. In other words, the appellant out of

total jail sentence of 3 years awarded to him by the

High Court has so far undergone for a period of one

year approximately. It is also not in dispute that the

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appellant  was  not involved in any other criminal

case except the one in question.

19. Keeping in view the facts that  the incident in

question is of the year 2007; Second, the appellant

has undergone jail sentence of 1 year 3 months out

of three years total period of jail sentence awarded

by the High Court; Third, the appellant was never

involved in any criminal activity except the case at

hand; and the last, out of three accused, one was

given the benefit of doubt, we are of the considered

opinion that the appellant has made out a case for

interference in the quantum of sentence awarded to

him by the High Court.

20. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is modified to the extent that the appellant is

now awarded jail sentence of "already undergone".

However, so far as the fine amount of Rs. one lakh

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imposed by the Courts is concerned, it is modified

and accordingly enhanced from Rs. one Lakh to Rs.

one Lakh Fifty Thousand (Rs.1,50,000/­). In other

words, the appellant is now awarded jail sentence of

"already  undergone" and a fine of  Rs.1,50,000/­.

Failure  to  deposit the  enhanced  fine  amount, the

appellant will have to undergo one more year of jail

sentence.     

  ………...................................J. [ABHAY MANOHAR SAPRE]

                                  …...……..................................J.                        [INDU MALHOTRA]

New Delhi; November 16, 2018  

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