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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.
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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.
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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
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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
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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
February 6, 2013
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