SANTOSH @ SANTOSH KUMAR versus STATE OF KERALA on 16 November 2018

[2018] 13 S.C.R. 1183

SANTOSH @ SANTOSH KUMAR

v.

STATE OF KERALA

(Criminal Appeal No. 1409 of 2018)

NOVEMBER 16, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Kerala Abkari Act

s. 55(a) and (1) – Prosecution u/s. 55(a) – Of appellant-accused alongwith other co-accused – Trial court acquitting oneco-accused, convicted the appellant-accused and another co-accused – They were sentenced to RI for five years and fine of Rs.one lakh with default clause – High Court upheld the conviction,but reduced the sentence of RI from five years to three years –Imposition of fine of Rs. one lakh was maintained – Appeal toSupreme Court – Notice was issued only confined to issue of sentence– Held: Appellant’s case falls under clause (a) of s. 55 – Therefore,it is governed by s. 55(1) – As per s. 55(1) jail sentence may varyand extend upto ten years, but so far as fine is concerned minimumamount of Rs. one lakh is mandatory – However, the court hasdiscretion to impose fine more than Rs. one lakh – In the facts of thecase, appellant has made out a case for interference in the quantumof sentence awarded by High Court – Sentence is reduced to theperiod already undergone i.e. 1 year 3 months – Amount of fine isenhanced to Rs. one lakh fifty thousand – Sentence/Sentencing.

Allowing the appeal, the Court

HELD: 1. Appellant’s case falls under clause (a) of s. 55 ofAbkari Act, therefore, it is governed by Section 55 (1) of theAbkari Act. From a mere reading of Section 55 (1), it is clear thatinsofar as the jail sentence is concerned, it may vary and extendup to 10 years depending upon the facts of each case, but insofaras the fine amount is concerned, the Court has to impose theminimum amount of Rs. one lakh. It is, therefore, mandatory forthe Court to impose a fine while awarding jail sentence andsecondly, it cannot be less than Rs. one lakh. However, the Court

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Ahas discretion to impose fine more than Rs. one lakh dependingupon the facts of each case. [Paras 15, 16 and 17][1186-C-E]

2. Keeping in view the facts that the incident in question isof the year 2007; the appellant has undergone jail sentence of 1year 3 months out of three years total period of jail sentenceBawarded by the High Court; the appellant was never involved inany criminal activity except the case at hand; and out of threeaccused, one was given the benefit of doubt, the Court is of theconsidered opinion that the appellant has made out a case forinterference in the quantum of sentence awarded to him by theHigh Court. [Para 19][1186-F-G]

C

3. The appellant is now awarded jail sentence of “alreadyundergone”. However, so far as the fine amount of Rs. one lakhimposed by the Courts is concerned, it is modified and accordinglyenhanced from Rs. One Lakh to Rs. One Lakh Fifty Thousand(Rs.1,50,000/-). On failure to deposit the enhanced fine amount,Dthe appellant will have to undergo one more year of jail sentence.[Para 20][1187-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1409 of 2018

EFrom the Judgment and Order dated 13.06.2016 of the High Courtof Kerala at Ernakulam in Crl.A. No. 1837 of 2010.

Shinoj K.Narayanan, K. Rajeev, Advs. for the Appellant.

Vipin Nair, P. B. Suresh, Anshumaan Bahadur Advs. for theRespondent.F

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated13.06.2016 passed by the High Court of Kerala at Ernakulam in Crl. A.GNo.1837 of 2010 whereby the High Court allowed the appeal in part bymaintaining the conviction but reducing the sentence imposed on theappellant herein by order dated 13.09.2010 passed by the AdditionalSessions Court(Adhoc-1), Palakkad in Sessions Case No.221 of 2009.

3. Few facts need to be mentioned for disposal of this appeal,Hwhich involves a short question.

4. The appellant along with two others were prosecuted forcommission of an offence punishable under Section 55 (a) of the AbkariAct enacted by the State of Kerala in Sessions Case No.221/2009 in theCourt of Additional Sessions Judge, Palakkad.

5. By order dated 13.09.2010, the Sessions Judge acquittedAccused No. 3 but convicted the appellant herein (Accused No. 2) andAccused No.1 and sentenced them to undergo rigorous imprisonmentfor 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 Courtof Kerala. By impugned order, the High Court upheld the conviction butinterfered in the quantum of sentence awarded to the appellant by theSessions Judge. The High Court reduced the jail sentence from 5 yearsto 3 years and maintained the imposition of fine amount of Rs.1 lakhbeing mandatory for imposition along with jail sentence.

7. The appellant (Accused No.2) felt aggrieved and filed thepresent appeal by way of special leave against the order of the HighCourt in this Court.

8. This Court by order dated 07.09.2018 issued notice of SLP tothe respondent (State) confining to examine only the question relating toquantum of sentence awarded to the appellant.

9. Therefore, the short question, which arises for consideration inthis appeal, is whether any case is made out on facts and in law forinterfering in the quantum of sentence awarded to the appellant (AccusedNo. 2) by the High Court.

10. Heard Mr. Shinoj K. Narayanan, learned counsel for theappellant-accused and Mr. Vipin Nair, learned counsel for the respondent-State.

11. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal as indicatedbelow.

12. The incident in question, which gave rise to the appellant’sprosecution, occurred in 2007. It was in relation to seizure of spirit storedin 58 cans in one residential house and in one car parked in the porch ofthe house.

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A

13. Three persons were arrested in connection with this incident.The appellant was one of them who, according to the prosecution, hadtaken the said house on rent. The seizure of the spirit from the house inquestion was held illegal and was, therefore, held to be an offencepunishable under Section 55(a) of the Abkari Act.

14. Section 55(1) of the Abkari Act provides that for any offenceother than an offence falling under clause (d) or clause (e), shall bepunishable with imprisonment for a term, which may extend to ten yearsand with fine, which shall not be less than Rs.One Lakh.

B

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.

C

16. From a mere reading of Section 55 (1), it is clear that insofaras the jail sentence is concerned, it may vary and extend up to 10 yearsdepending upon the facts of each case, but insofar as the fine amount isconcerned, the Court has to impose the minimum amount of Rs. onelakh.D

17. It is, therefore, mandatory for the Court to impose a fine whileawarding jail sentence and secondly, it cannot be less than Rs. one lakh.However, the Court has discretion to impose fine more than Rs. onelakh depending upon the facts of each case.

E

E18. It is not in dispute that the appellant has already undergone jailsentence of around 1 year and 3 months till date and he still continues toremain in jail. In other words, the appellant out of total jail sentence of 3years awarded to him by the High Court has so far undergone for aperiod of one year approximately. It is also not in dispute that the appellantwas not involved in any other criminal case except the one in question.F

19. Keeping in view the facts that the incident in question is ofthe year 2007; Second, the appellant has undergone jail sentence of 1year 3 months out of three years total period of jail sentence awarded bythe High Court; Third, the appellant was never involved in any criminalactivity except the case at hand; and the last, out of three accused, oneGwas given the benefit of doubt, we are of the considered opinion that theappellant has made out a case for interference in the quantum of sentenceawarded to him by the High Court.

20. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is modified to the extent H

SANTOSH @ SANTOSH KUMAR v. STATE OF KERALA[ABHAY MANOHAR SAPRE, J.]

that the appellant is now awarded jail sentence of “already undergone”.However, so far as the fine amount of Rs. one lakh imposed by theCourts 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” anda fine of Rs.1,50,000/-. Failure to deposit the enhanced fine amount, theappellant will have to undergo one more year of jail sentence.

Kalpana K. Tripathy

Appeal allowed.

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