IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 716 OF 2010 [arising out of SLP(CRL.) No. 171 of 2010]

   DHARMAN ..... APPELLANTS

VERSUS

    STATE OF KERALA ..... RESPONDENT

O R D E R

1. Leave  granted.

2. The  instant  appeal  is  directed  against  the  

judgment and order dated 8th April, 2009 rendered in  

Criminal Appeal No. 340 of 2002 by the High Court of  

Kerala  at  Ernakulam  by  which  the  conviction  and  

sentence of the appellant recorded under Section 55(1)  

of the Abkari Act has been set aside .  The conviction  

under Section 55(a) of the said Act was maintained and  

was sentenced to rigorous imprisonment for one year and  

fine of Rs. 1 lakh and in default rigorous imprisonment  

for six months.   

3. This Court has heard the learned counsel for the  

parties.  In view of the concurrent findings of fact,  

this  Court  is  not  inclined  to  interfere  with  the  

conviction  of  the  appellant  recorded  under  Section  

55(a)  of  the  Act.   However,  as  far  as  sentence  is

concerned, the appellant has averred that he is a poor  

man  and  not  able  to  pay  fine  of  Rs.  1  lakh  and  

therefore, the sentence imposed on him in default of  

fine be reduced suitably.   

4. Having regard to the facts of the case and the  

fact  that  the  appellant  has  already  undergone  four  

months of the sentence imposed on him for commission of  

offence under Section 55(a) of the Act and that the  

default sentence imposed on him be reduced as he is not  

in a position to pay Rs. 1 lakh fine imposed on him,  

this  Court  has  heard  the  learned  counsel  for  the  

parties.

5. The  record  shows  that  the  appellant  was  

intercepted  and  found  transporting  four  bottles  of  

750ml each and five bottles of 180ml each of Indian  

Made Foreign Liquor kept in polythene bag.  The fact  

that the appellant is poor is not disputed before this  

Court.  The record further shows that on June 17, 2009  

the appellant had donated one kidney as a result of  

which  he  frequently  complains  about  weakness  and  

recurrent  urinary  infection.   Having  regard  to  the  

feeble health of the appellant, this Court is of the  

opinion that interest of justice would be served if the  

appellant is sentenced to imprisonment to that which he  

has already undergone and default sentence imposed on  

him is reduced to one month for commission of offence

punishable under Section 55(a) of the Act.

6. For  the  foregoing  reasons,  the  appeal  partly  

succeeds, the conviction of the appellant under Section  

55(a) of the Abkari Act is maintained.  However, the  

appellant  is  sentenced  to  imprisonment  already  

undergone  whereas  default  sentence  of  six  months  

imposed him is reduced to one month.

Subject to above modification, the appeal stands  

disposed of.  

    ..................J      [J.M. PANCHAL

    ..................J      [DR. B.S. CHAUHAN]

NEW DELHI      APRIL 01, 2010.