1. Manufacturing of arrack — Conviction under Section 55(g) and 8(1) read with 8(2) of the Abkari Act. (Para 3 , 4 , 5 )
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2022 Supreme(SC) 539
SUPREME COURT OF INDIA
Ajay Rastogi, C.T. Ravikumar, JJ.
Gopinathan – Appellant
Vs.
The State Of Kerala – Respondent
Criminal Appeal No(S). 906 Of 2022 (Arising out of SLP(Crl.) No(s). 9195 of 2021)
Decided On : 22-06-2022
Advocates appeared:
For the Petitioner(s):Abhilash M.R., Sayooj Mohandas, Sandeep Singh, Advocates
For the Respondent(s):Harshad V. Hameed, Dileep Poolakkot, Ashly Harshad, Rohith R. Kartha, Advocates
For the Petitioner(s):Abhilash M.R., Sayooj Mohandas, Sandeep Singh, Advocates
For the Respondent(s):Harshad V. Hameed, Dileep Poolakkot, Ashly Harshad, Rohith R. Kartha, Advocates
IMPORTANT POINT
Sentence can be reduced keeping in view long lapse of time as well as advance age of accused.
Headnote:
Abkari Act(1 of 1077) – Sections 8(1) read with 8(2) and 55(g) – Seizure of Arrack – Conviction and sentence – Taking into consideration overall aspect of matter and fact that 15 years have been rolled by this time from date of incident which may due to institution lapses(the matter could have been finalized earlier) and noticing that there are no such criminal antecedents against appellant and fact that appellant has crossed 63 years of age, it is appropriate to modify sentence to simple imprisonment of one year under Section 55(g) of Abkari Act and he shall also be liable to pay a fine of Rs. 1,00,000/- on both counts, in default, he shall suffer simple imprisonment for six months. (Paras 11 and 12)
Facts of the case:
Correctness of judgment and order dated 11th June, 2021 passed by the High Court of Kerala in Criminal Appeal No. 800 of 2011 is challenged in appeal before this Court. Appellant(A1) was charge-sheeted for offence under Section 55(g) and 8(1) read with 8(2) of the Abkari Act and after facing trial was convicted for the aforestated offences and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,00,000/- each, in default rigorous imprisonment for 1 year for each offence under Sections 8(1) read with 8(2) and 55(g) of Abkari Act and substantive sentences were directed to run concurrently.
Findings of Court:
Though both PW1 and PW3 have been extensively cross-examined, but nothing could be elicited out of their evidence and no reason to deviate from the view which has been expressed by the High Court so far as the conviction of appellant for the aforestated offences is concerned.
Result : Appeal disposed of with directions.
Legal Category Hierarchy
Table of Contents
2. Challenge to the High Court's judgment upholding conviction and modifying the sentence for offences under the Abkari Act. (Para 2 , 9 )
3. Prosecution witness testimony is reliable — Sentence modification is warranted due to the appellant's age, lack of criminal antecedents, and significant time elapsed since the incident. (Para 11 , 12 )
4. Sentencing may be mitigated by considering the age of the accused, absence of criminal history, and institutional delays in finalizing the matter. (Para 12 )
5. Conviction upheld — Sentence modified to simple imprisonment for one year and a fine. (Para 12 , 13 )
6. How does the court treat prosecution witness testimony that remains unshaken despite extensive cross-examination?
The court may rely on such testimony to uphold a conviction if no contradictory evidence is elicited during cross-examination to deviate from the lower court's view. (Para 11 )
7. What mitigating factors can lead to the modification of a sentence in a criminal appeal?
Factors such as the age of the accused, the absence of prior criminal antecedents, and the significant passage of time since the incident due to institutional lapses may justify a sentence reduction. (Para 12 )
8. Can the court modify the nature of imprisonment from rigorous to simple during an appeal?
Yes, the court has the discretion to modify the sentence, including changing rigorous imprisonment to simple imprisonment, based on the overall circumstances of the case and the profile of the convict. (Para 12 )
JUDGMENT :
Rastogi, J.
1. Leave granted.
2. The correctness of judgment and order dated 11th June, 2021 passed by the High Court of Kerala in Criminal Appeal No. 800 of 2011 is challenged in appeal before this Court.
3. The appellant(A1) was charge-sheeted for offence under Section 55(g) and 8(1) read with 8(2) of the Abkari Act and after facing trial was convicted for the aforestated offences and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,00,000/ each, in default rigorous imprisonment for 1 year for each offence under Section 8(1) read with 8(2) and 55(g) of the Abkari Act and substantive sentences were directed to run concurrently.
4. As per the prosecution, on 25th February, 2007 at 9.10 a.m., the Sub-Inspector, Perunad police station and party found the appellant along with six others, engaged in manufacturing arrack in a place by name Kochethupara in Perunad village and Manakayam Muri within Ranni Taluk in Perunad police station limits. Knowing about the illegal activities of the appellant and others, police party proceeded to the place and found the appellant and others near a small watercourse, engaged in manufacturing arrack. After seeing the police, all of them tried to run away from the place. The police tried to chase them but only the appellant could be apprehended. After taking him back to the place of occurrence, the items were seized under a mahazar.
5. According to the prosecution, they found the accused engaged in manufacturing of arrack in a remote area, 40 liters of arrack was found kept in two jars of 20 litres each, at some distance about 3750 litres of wash was also seen concealed under the bushes in 250 tins each containing 15 liters each. Samples were collected from the jars and the wash, remaining wash was destroyed at the place itself. The accused appellant was arrested from the place and crime was registered against him.
6. After investigation, charge-sheet was filed against 7 accused persons including the appellant. The learned Magistrate, after perusing the record, took cognizance and after completing other formalities committed the case to the Court of Sessions.
7. During the course of trial, A2 expired and accordingly, the proceeding against him stood abated. After the Sessions Judge conducted the trial, the appellant was held guilty and convicted for the offences under Section 8(1) read with 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,00,000/ each, and in default, rigorous imprisonment for 1 year each.
8. So far as A3 to A7 are concerned, they are acquitted under Section 235(1) of Code of Criminal Procedure, 1973 by the Court of Sessions by a judgment dated 9th May 2011.
9. On appeal being preferred by the appellant, the High Court on perusal of record and taking into consideration the submissions made and the evidence of PW1 and PW3, upheld the order of conviction passed by the learned trial Court but taking the overall factors into consideration and particularly the date of incident and the age factor of the appellant and noticing that there are no criminal antecedents against him, while upholding conviction under Section 55(g) of the Abkari Act, modified and reduced the sentence to rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/, each on both counts, in default, to suffer rigorous imprisonment for six months but was not inclined to impose separate sentences for the offence punishable under Section 8(1) of the Abkari Act by judgment dated 11th June 2021.
10. We have heard learned counsel for the parties and with their assistance perused the material available on record as well as the statements of PW1 and PW3.
11. Though both PW1 and PW3 have been extensively cross-examined, but nothing could be elicited out of their evidence and we find no reason to deviate from the view which has been expressed by the High Court so far as the conviction of appellant for the aforestated o
