Vijayan vs State of Kerala

V. Ramkumar, J.—In this appeal preferred from the Central Prison, Kannur, the appellant who was the sole accused in S.C. No. 237 of 2009 on the file of the Additional Sessions Court (Adhoc - I), Kozhikode, challenges the conviction entered and the sentence passed against him for an offence punishable u/s 55(a) of the Abkari Act.

The case of the prosecution is the following:

On 11.01.2009, at about 12.30 p.m., the appellant was found in possession of 9 bottles of Indian Made Foreign Liquor each bottle having 180 ml. capacity with label ''Royal Crescent Grape Brandy'' manufactured in Pondichery and prohibited for sale in Kerala on the road leading to the colony from Kuruvanthery in Chekyad village. The appellant has thereby committed an offence punishable u/s 55(a) of the Abkari Act since his possession was in contravention of the provisions of the said Act.

The case after committal by the Judicial First Class Magistrate, Nadapuram came up for preliminary hearing u/s 227 Cr.P.C before the Additional Sessions Court, Kozhikode. To the charge framed against him by the court below for an offence punishable u/s 55(a) of the Abkari Act, the appellant voluntarily pleaded guilty. On being satisfied that the plea of guilt was made voluntarily, the learned Sessions Judge convicted the appellant and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh and on default to pay the fine, to suffer rigorous imprisonment for three months. The appellant has been in custody since the date of detection namely 11.01.2009 onwards. It is the said conviction and sentence which are assailed in this appeal preferred from the Central Prison.

I heard Adv. Ms. Sainu B, the learned Counsel appearing for the appellant on State Brief and the learned Public Prosecutor.

In the normal course, I would have set aside the judgment under appeal and remanded the matter to the court below because, in the case of grave offences, a Sessions Judge should not, as a measure of caution, convict the accused on his pleading guilty even if the plea is voluntarily made and Section 229 Cr.P.C gives power to the Sessions Judge to convict the accused on his voluntarily pleading guilty. The proper exercise of judicial discretion for the Sessions Judge would be to call upon the prosecution to prove its case. vide Ramesan v. State 1981 KLT 141 But then, the appellant has been languishing in the jail since 11.01.2009 onwards and if the judgment under appeal is set aside and the matter is remitted to the court below, it will add insult to injury so far as the appellant is concerned and it will also offend the requirement of speedy trial. After all, the appellant was found in possession of IMFL within the limit prescribed by the Government as per the notification issued under Sections 10 and 13 of the Abkari Act. No doubt, the IMFL was allegedly manufactured in Pondichery and therefore, the prescription of limit has no application. But having regard to the facts and circumstances of the case, I confirm the conviction entered against the appellant and modify the sentence by holding that for the said conviction, the appellant shall undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,00,000/- (Rupees one lakh only) and on default to pay the fine, he shall suffer rigorous imprisonment for three months.

In the result, this appeal is allowed in part confirming the conviction entered but modifying the sentence passed against him.

Dated this the 15th day of October, 2009.