IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1409 OF 2018
(Arising out of S.L.P.(Crl.) No. 6224 of 2017)
Santosh @ Santosh Kumar ….Appellant(s)
State of Kerala ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 13.06.2016 passed by the High
Court of Kerala at Ernakulam in Crl. A. No.1837 of
2010 whereby the High Court allowed the appeal in
part by maintaining the conviction but reducing the
sentence imposed on the appellant herein by order
dated 13.09.2010 passed by the Additional Sessions
Court(Adhoc1), Palakkad in Sessions Case No.221
3. Few facts need to be mentioned for disposal of
this appeal, which involves a short question.
4. The appellant along with two others were
prosecuted for commission of an offence punishable
under Section 55 (a) of the Abkari Act enacted by
the State of Kerala in Sessions Case No.221/2009
in the Court of Additional Sessions Judge,
5. By order dated 13.09.2010, the Sessions
Judge acquitted Accused No. 3 but convicted the
appellant herein (Accused No. 2) and Accused No.1
and sentenced them to undergo rigorous
imprisonment for 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 Court of Kerala. By impugned order, the
High Court upheld the conviction but interfered in
the quantum of sentence awarded to the appellant
by the Sessions Judge. The High Court reduced the
jail sentence from 5 years to 3 years and maintained
the imposition of fine amount of Rs.1 lakh being
mandatory for imposition along with jail sentence.
7. The appellant (Accused No.2) felt aggrieved
and filed the present appeal by way of special leave
against the order of the High Court in this Court.
8. This Court by order dated 07.09.2018 issued
notice of SLP to the respondent (State) confining to
examine only the question relating to quantum of
sentence awarded to the appellant.
9. Therefore, the short question, which arises for
consideration in this appeal, is whether any case is
made out on facts and in law for interfering in the
quantum of sentence awarded to the appellant
(Accused No. 2) by the High Court.
10. Heard Mr. Shinoj K. Narayanan, learned
counsel for the appellantaccused and Mr. Vipin
Nair, learned counsel for the respondentState.
11. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal as indicated below.
12. The incident in question, which gave rise to
the appellant’s prosecution, occurred in 2007. It
was in relation to seizure of spirit stored in 58 cans
in one residential house and in one car parked in
the porch of the house.
13. Three persons were arrested in connection
with this incident. The appellant was one of them
who, according to the prosecution, had taken the
said house on rent. The seizure of the spirit from
the house in question was held illegal and was,
therefore, held to be an offence punishable under
Section 55(a) of the Abkari Act.
14. Section 55(1) of the Abkari Act provides that
for any offence other than an offence falling under
clause (d) or clause (e), shall be punishable with
imprisonment for a term, which may extend to ten
years and with fine, which shall not be less than
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.
16. From a mere reading of Section 55 (1), it is
clear that insofar as the jail sentence is concerned,
it may vary and extend up to 10 years depending
upon the facts of each case, but insofar as the fine
amount is concerned, the Court has to impose the
minimum amount of Rs. one lakh.
17. It is, therefore, mandatory for the Court to
impose a fine while awarding jail sentence and
secondly, it cannot be less than Rs. one lakh.
However, the Court has discretion to impose fine
more than Rs. one lakh depending upon the facts of
18. It is not in dispute that the appellant has
already undergone jail sentence of around 1 year
and 3 months till date and he still continues to
remain in jail. In other words, the appellant out of
total jail sentence of 3 years awarded to him by the
High Court has so far undergone for a period of one
year approximately. It is also not in dispute that the
appellant was not involved in any other criminal
case except the one in question.
19. Keeping in view the facts that the incident in
question is of the year 2007; Second, the appellant
has undergone jail sentence of 1 year 3 months out
of three years total period of jail sentence awarded
by the High Court; Third, the appellant was never
involved in any criminal activity except the case at
hand; and the last, out of three accused, one was
given the benefit of doubt, we are of the considered
opinion that the appellant has made out a case for
interference in the quantum of sentence awarded to
him by the High Court.
20. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is modified to the extent that the appellant is
now awarded jail sentence of “already undergone”.
However, so far as the fine amount of Rs. one lakh
imposed by the Courts 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” and a fine of Rs.1,50,000/.
Failure to deposit the enhanced fine amount, the
appellant will have to undergo one more year of jail
[ABHAY MANOHAR SAPRE]
November 16, 2018