RAJAMANIversusSTATE OF KERALA

                   [2013] 4 S.C.R. 187

                        RAJAMANI                              A
                             v.
                   STATE OF KERALA
            (Criminal Appeal No. 397 of 2013)
                     MARCH· 06, 2013
                                                               B
            [T.S. THAKUR. AND SUDHANSU
              JYOTI MUKHOPADHAYA, JJ.]

     Kera/a Abkari Act (1 of 1077) - s.55(a) - Conviction
under - For illegal trade in liquor - Trial court sentenced the C
accused to seven years imprisonment and imposed fine of
Rs. 1 lakh with default clause - High Court reduced the
sentence to five years imprisonment and enhanced the
amount of fine to Rs. 2 /akhs - Notice by Supreme Court
limited on. the question of sentence - Held: In view of the D
circumstances of the case that the accused was only a driver
of the lorry in which the goods were tr.ansported, and the
investigating agency did not make any endeavour to expose
the racketeers, the sentence of the accused is reduced to three
years imprisonment and fine is reduced to Rs. 1 lakh.           E
    Appellant-a~cused, a driver of a lorry was caught
carrying contraband and was prosecuted u/s.55 of Kerala
Abkari Act (1 of 1077). Trial court convicted the accused
and sentenced him to imprisonment of seven years and
imposed fine of Rs.1 lakh with default clause. High Court      F
affirmed the conviction but reduced the sentence to five
years imprisonment and enhanced the fine to Rs.2 lakhs
with default clause. In appeal, this Court issued notice
limited to the question of sentence.
                                                               G
    Disposing of the appeal, the Court
    HELD: 1. The appellant was a driver by profession.
The quantity of contraband was thus large. That could
                            187                                H
     188     SUPREME COURT REPORTS                [2013] 4 S.C.R.


A 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 importani is whether
   the appellant was the owner of the contraband or had any
   financial interest in its possession or transportation.
s 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. Arrest
c 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. In matters of illegal trade whether in
0
  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
E the avowed purpose underlying the legislation. [Para 6]
  [190-D-H]
       2.ln the totality of the circumstances and the facts of
  the cases, thet sentence awarded to the appellant is
  reduced from five years to three years rigorous
F 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. [Para 7] [191-8-C]
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 397 of 2013.
G
        From the Judgment & Order dated 15.03.2012 of the High
    Court of Kerala at Ernakulam in Crl. A. No. 1345 of 2003.

        P.V. Dinesh, Bineesh for the Appellant.

H       Jogy Scaria, K.K. Sudhesh for the Respondent.
          RAJAMANI v. STATE OF KERALA                       189

    The Judgment of the Court was delivered by                      A
    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        B
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.
                                                                    c
     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         D
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
                                                                    E
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      F
sentence awarded to the appellant. We have accordingly heard
learned counsel for the parties on that limited question.

     5. Section 55 (a) of the Act makes any contravention of
the Act or of any rule made thereunder in regard to "import,        G
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 -               H
     190         SUPREME COURT REPORTS             (2013] 4 S.C.R.


A          (a)    Imports, exports, transports, transits or possesses
                  liquor or any intoxicating drug; or

                  xxx xxx        xxx

                  shall be punished.-
B
                  (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
c                 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
D 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 whether the
   appellant was the owner of the contraband or had any financial
E 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
F 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
G 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
H lip service to the avowed purpose underlying the legislation. No
RAJAMANI v. STATE OF KERALA [T.S. THAKUR, J.] 191

reason is forthcoming in the present case why no effort was      A
made by the Investigating Agency to expose the racketeers
without whose support and involvement such a big consignment
of spirit could not have been purchased nor its transportation
arranged.
                                                                 B
     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 C
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.
                                                                 D
K.K.T.                                   Appeal disposed of.