SASIKUMAR & ANR.versusSTATE OF KERALA

                       [2012] 9 S.C.R. 1061


                       SASIKUMAR & ANR.                                    A
                                   v.
                       STATE OF KERALA
               (Criminal Appeal No. 1987 of 2012)

                       DECEMBER 4, 2012
                                                                           B
  [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

        (Kera/a) Abkari Act - s. 8(1) rlw s. 8(2) - Illicit trade in arrack
  - Three accused -Seizure of two cans containing 40 litres of
  arrack from their possession - Trial court convicted all the C
  accused and sentenced them to RI for 3 years and a fine of
  Rs.1,00,0001- with default sentence of one year RI - High
  Court, though maintaining the conviction, reduced the
  sentence to RI for 18 months and the default sentence for
. failure to pay the fine, to RI for six months - On appeal before D
  Supreme Court by two accused i.e. the two appellants - Held:
  The conviction of the appellants was justified - However, from
  the quantity seized and the manner in which it was being
  carried, it is evident that the accused were only small time
  operators in the illicit trade of arrack - In the circumstances, E
  sentence reduced to one year RI and sentence in default of
  payment of fine reduced to 15 days in the case of the
  appellants - Relief granted to appellants extended to the non-
  appea/ing accused as well, since no distinction between him
  and the case of the appellants.                                           F

     (Kera/a) Abkari Act - s.8(1) rlw 8(2) - Illicit trade in arrack
- Minimum fine prescribed at Rs.1,00,0001- in terms of s.8(2)
- Default sentence/imprisonment for failure to pay the fine -
Effect of - Observation made by Supreme Court that in a way,
fixing the minimum fine at such a high amount (i.e.                       G
Rs.1,00,0001-), leads to a) discrimination in favour of convicts
who have sufficient means to pay the fine and, thus, avoid any
default imprisonment and b) additional sentence of
imprisonment for poor convicts as they are hardly in a position
                              1061                                         H
    1062    SUPREME COURT REPORTS                [2012] 9 S.C.R.

A to pay such high amount of fine - It is desirable to leave the
    Court free in exercise of judicial discretion in the matter of
    imposition of fine.

       According to the prosecution, the three accused
  were coming in an auto-rickshaw when they saw a police
8
  party whereupon all of them ran away leaving the auto-
  rickshaw at the spot. On inspection, the police found two
  cans containing 40 litres of arrack lying inside the auto-
  rickshaw.

C      The trial court convicted the three accused under
  Section 8(1) read with 8(2) of the (Kerala) Abkari Act and
  sentenced them to rigorous imprisonment for three years
  and a fine of Rs.1,00,000/- with default sentence of one
  year rigorous imprisonment. In appeal, the High Court,
D 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 six months.

E        The accused No.1 apparently accepted the judgment
    of the High Court and did not prefer any SLP. The other
    two accused, i.e., the appellants, however, came up
    before this Court in the present appeal challenging their
    conviction as also the sentence awarded to them.

F       Partly allowing the appeal, the Court

       HELD: 1. 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
G 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 the
  conviction of the appellants as recorded by the trial court
  and affirmed by the High Court is upheld. [Para 7] (1065-
H H; 1066-A]
     SAS IKUMAR & ANR. v. STATE OF KERALA             1063


     2. From the facts of the case it is evident that the A
appellants (accused nos.2 and 3) as well as accused no.1
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 B
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, a
further reduction of the sentence would be quite in order.
Accordingly, the sentence of imprisonment is reduced c
from 18 months, as awarded by the High Court, to one
year and further the sentence in default of payment of fine
is reduced from six months to fifteen days. (Para 11)
 (1066-H; 1067-A-C]

     3. Accused No.1 is not before this Court presumably       D
on account of poverty, as his appeal to the High Court
was also a jail appeal. There is no distinction be.tween the
case of the appellants (accused nos.2 and 3) and the
case of accused No.1 and, accordingly, the relief granted
to the two appellants is extended to accused No.1 as well.     E
[Para 12) (1067-D]
     4. Before parting with this case, this Court 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
                                                               F
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. It may be
noted that in cases where poor people like the appellants      G
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      H
    1064     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A 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
B invariably mean an additional sentence of imprisonment.
  It is desirable to leave the Court free in exercise of judicial
  discretion in the matter of imposition of fine. [Para 13]
  [1067-E-H; 1068-A]
      CRIMINAL APPELLLATE JURISDICTION : Criminal
C Appeal No. 1987 of 2012.

        From the Judgment & Order dated 04.08.2011 of the High
    Court of Kerala at Ernakulam in Criminal Appeal No. 1338 of
    2010.
D
        Raghenth Basant (For Senthil Jagadeesan) for the
    Appellants.

        Jogy Scaria for the Respondent.

E       The Judgment of the Court was delivered by

        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
F 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
G 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.
H
     SASIKUMAR & ANR. v. STATE OF KERALA                      1065
               [AFTAB ALAM, J.]

     3. According to the prosecution case, on March 12, 2005           A
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,         B
the police found two (2) 20 litres cans containing 40 litres of
arrack lying inside the auto-rickshaw and, lhus, 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
                                                                       c
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.
                                                                       D
     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             E
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
                                                                       F
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.

    7. We have heard Mr. R. Basant, learned counsel for the            G
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   H
    1066    SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A 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
8
    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:-
c
        "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
D       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,
E
        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
F       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
G       set off under Section 428 of Cr.P.C."

        10. We agree with the view taken by the High Court.

       11. We would like to further observe that from the facts of
H the case it is evident that the appellants and the other accused
      SASIKUMAR & ANR. v. STATE OF KERALA                        1067
                [AFTAB ALAM, J.]

in this case are not the real men behind the nefarious trade of           A
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   B
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         c
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                D
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        E
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 default             F
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            G
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           H
    1068    SUPREME COURT REPORTS                [2012] 9 S.C.R.


A 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
8 imposition of fine:
                    '
         14. In the light of the discussion made above, the appeal
   is allowed to the limited extent, as directed above.

   8.8.8.                                  Appeal partly allowed.