2015 (11) TMI 1520 - HC - Central Excise

Seeking modification in the sentence order - Offence punishable under Section 55(a) - Seizure of spirit - Appellant contended that there is a difference in the number of the car in the forwarding note and in the Chemical Analysis Report. Also sample was taken only from one of the compartments and the non-production of the tube used for taking sample - Held that - true, there is a slight difference in the number of the car in the forwarding note and in the Chemical Analysis Report. But the crime number is shown in the Chemical Analysis Report and so also it is stated that the sample seal forwarded tallied with the seal found on the sample bottle sent for analysis. The number shown in the Chemical Analysis Report can only be a clerical error. Even assuming that the articles were produced only on the next day, there is nothing to show that any prejudice has been caused or any tampering could have been done in the meanwhile. PWs 1 and 3 have uniformly stated that the contents of all the compartments found in the car were identical and they did not feel that each of the compartments contain different liquids. In such circumstances, it is by now well settled that it is sufficient if the sample is taken from one of the bottles or one of the compartments as the case may be. This contention therefore too should fail. Therefore, the court has found that the defence set up is totally false. On an independent analysis of the evidence in the case, it is also found that story of the accused travelling in a lorry etc., are nothing, but a cock-and-bull story. Seeking modification in the sentence order - Offence punishable under Section 55(a) - Seizure of spirit - Appellant contended that the sentence imposed is too severe and is disproportionate to the offence alleged to have been committed by the accused - Held that - the antecedents and nature of the offence are relevant factors as regards sentencing policy is concerned. There is no antecedents or history of the accused having been involved in such transportation or carrying of contraband articles and nor after going on bail, he has done it again. Under these circumstances, it can be said that there is some substance in the contention of the appellant that some leniency may be shown with regard to the sentence. True, the crime is heinous and the consequences are drastic. Spirit flows and flows in Kerala. That has necessarily to be curbed. But in the process, the court shall not be carried away in the matter of sentencing an accused when situation warrants a lenient consideration. Since there is no antecedents shown as regards the accused and since it is felt that probably a proportionate term of imprisonment may reform him, it is felt that under the circumstances, some leniency can be shown in the matter of sentence. Therefore, while confirming the conviction of the accused for the offence punishable under Section 55(a), the sentence awarded is set aside. - Decided in favour of appellant

Summary

Issues Involved:
1. Legality of the conviction under Section 55(a) of the Abkari Act.
2. Discrepancies in vehicle number in forwarding note and Chemical Analysis Report.
3. Delay in producing the contraband articles before the court.
4. Adequacy of the sample taken from the contraband.
5. Non-production of the tube used for taking the sample.
6. Severity of the sentence imposed.

Issue-wise Detailed Analysis:

1. Legality of the conviction under Section 55(a) of the Abkari Act:
The accused was prosecuted and found guilty under Section 55(a) of the Abkari Act, leading to his conviction and sentencing to rigorous imprisonment for five years and a fine of Rs. 5 lakhs, with a default clause of additional imprisonment for two years. The incident occurred on 18.08.2000 at Muthanga Excise Check Post, where the accused was found driving a car containing 450 litres of spirit. Despite the accused's defense of being a pineapple vendor and not the driver, the court found the prosecution's evidence, particularly from PWs 1, 3, 4, and 5, to be credible and sufficient to establish guilt.

2. Discrepancies in vehicle number in forwarding note and Chemical Analysis Report:
The appellant contended that the vehicle number discrepancy between the forwarding note and the Chemical Analysis Report cast doubt on the sample's authenticity. However, the court noted that the crime number in the Chemical Analysis Report matched the case, and the sample seals tallied, deeming the discrepancy a clerical error without prejudice to the accused.

3. Delay in producing the contraband articles before the court:
The appellant argued that the one-day delay in producing the contraband articles before the court was unexplained. The court accepted PW2's explanation for the delay and referenced a Division Bench decision stating that 'forthwith' means within a reasonable time, provided the delay is explained. The court found no evidence of tampering or prejudice caused by the delay.

4. Adequacy of the sample taken from the contraband:
The appellant claimed that taking only one sample from multiple compartments was insufficient. The court held that since the liquid in all compartments was identical, taking a sample from one compartment was adequate and consistent with established legal principles.

5. Non-production of the tube used for taking the sample:
The appellant's contention regarding the non-production of the tube used for sampling was dismissed as unworthy of discussion. The court found no legal obligation to produce the utensil used for taking the sample.

6. Severity of the sentence imposed:
The appellant argued that the sentence was too severe and disproportionate. The court acknowledged the need for leniency considering the lack of antecedents and the potential for reformation. Consequently, the court reduced the sentence to three years of rigorous imprisonment and a fine of Rs. 1 lakh, with a default clause of six months, while confirming the conviction under Section 55(a) of the Abkari Act.

Conclusion:
The court meticulously analyzed the evidence and found the prosecution's case credible and the defense's story unsubstantiated. While upholding the conviction, the court showed leniency in sentencing, reducing the imprisonment term and fine, considering the accused's lack of prior offenses and potential for reformation.