Gopinathan vs The State Of Kerala on 22 June, 2022

Supreme Court of India

Gopinathan vs The State Of Kerala on 22 June, 2022

Author: Ajay Rastogi

Bench: C.T. Ravikumar, Sudhanshu Dhulia

                                                           NON­REPORTABLE
                                    IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL APPEAL NO(S). 906 OF 2022
                                (Arising out of SLP(Crl.) No(s). 9195 of 2021)

         GOPINATHAN                                              ….APPELLANT(S)


                              VERSUS

         THE STATE OF KERALA                                     ….RESPONDENT(S)

                                             JUDGMENT

Rastogi, J.

1. Leave granted.

2. The correctness of judgment and order dated 11 th 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 charge­sheeted 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
Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL

a fine of Rs.1,00,000/­ each, in default rigorous imprisonment for 1
Date: 2022.06.22
18:03:50 IST
Reason:

year for each offence under Section 8(1) read with 8(2) and 55(g) of

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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 Sub­Inspector, 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

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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, charge­sheet 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

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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 afore­

stated offences is concerned.

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12. At the same time, taking into consideration the overall aspect

of the matter and the fact that 15 years have been rolled by this

time from the 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 the appellant

as indicated by the respondent in para 9 of the counter affidavit

and the fact that the appellant has crossed 63 years of age,

consider it appropriate to modify the sentence to simple

imprisonment of one year under Section 55(g) of the Abkari Act and

he shall also be liable to pay a fine of Rs. 1,00,000/­ on both the

counts, in default, he shall suffer simple imprisonment for six

months.

13. With the aforesaid directions, the appeal stands disposed of.

14. Pending application(s), if any, shall stand disposed of.

………………………J.

(AJAY RASTOGI)

……………………….J.

(C.T. RAVIKUMAR)
NEW DELHI
JUNE 22, 2022

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