CRL.A NO. 1504 OF 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
CRL.A NO. 1504 OF 2006
AGAINST THE ORDER/JUDGMENT IN CP 43/2003 OF JUDL. MAGISTRATE OF
FIRST CLASS, KOTHAMANGALAM
SC 278/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
APPELLANT/S:
RAGHAVAN
S/O.PAILY,PALAKKOTTIL VEEDU, NEAR ALLUNGAL MUSLIM,
MOSQUE, PIRAKKUNNAM KARA, NERIYAMANGALAM.
BY ADV SRI.S.SREEKUMAR
RESPONDENT/S:
1 STATE OF EKERALA
REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
2 ASHRUF, S/O. ALIYAR
PATTIKKAMATTATHIL VEEDU, PIRAKKUNNAM KARA,
NERIYAMANGALAM.
BY ADVS.
PUBLIC PROSECUTOR
SRI.R.BINDU SASTHAMANGALAM
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1504 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No.1504 of 2006
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Dated this the 3rd day of June, 2022
JUDGMENT
The appellant is the 1st accused in Sessions Case No. 478/2002 on the file of the Addl.Sessions Judge, (Adhoc-2), Ernakulam. This is a case chargesheeted against the appellant and another alleging offence punishable under Secs. 8(1) r/w 8(2) of the Abkari Act.
2. The prosecution case is that on 18.4.2003 at about 11.10 pm, the accused was found transporting illicit arrack in a 10 ltr. Plastic can in an autorikshaw bearing registration No.KL-7 U/4781 driven by the 2nd accused in violation of the provisions of the Abkari Act at Oonnukal. The accused are therefore alleged to have committed the offence.
3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P12 are the exhibits. MO1 is the material object marked on the side of the prosecution. No defence evidence was adduced by the prosecution. After going CRL.A NO. 1504 OF 2006 3 through the evidence and the documents, the trial court found that the 1st accused is guilty under Secs.8(1) r/w 8(2) of the Abkari Act. The 2nd accused was acquitted. The 1st accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default to pay the fine, he is directed to undergo simple imprisonment for a further period of six months under Secs.8(1) r/w 8(2) of the Abkari Act. It is also ordered that the accused is entitled set off for the period of detention from 18.4.2003 to 3.5.2003. Aggrieved by the conviction and sentence, this appeal is filed.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. The counsel for the appellant submitted that even if the entire allegations are accepted, the prosecution is not able to prove the case. The counsel submitted that the vehicle was driven by the 2nd accused and it is the case of the prosecution that when the police party came, both accused tried to ran away. The 2nd accused was already acquitted by the trial court. The counsel submitted that there is no other evidence to CRL.A NO. 1504 OF 2006 4 connect the accused with the contraband articles. The counsel also submitted that the prosecution miserably failed to prove that the seized articles reached in the hands of the Analyst. Therefore, the accused is entitled the benefit of doubt. The learned Public Prosecutor submitted that there is nothing to interfere with the conviction and sentence imposed on the appellant. The Public Prosecutor submitted that the oral evidence coupled with the documentary evidence will prove the offence and the appellant is guilty under Sec.8(1) of the Abkari Act. The Public Prosecutor takes me through the evidence available in this case along with the documents.
6. This Court considered the contentions of the appellant and the Prosecutor. The point for consideration in this appeal is whether the appellant committed the offence under Secs.8(1) and (2) of the Abkari Act based on the oral evidence of PW1 to PW4 coupled with the documentary evidence of Exts.P1 to P12.
7. This Court perused the evidence and documents available in this case. The prosecution case is that on 18.4.2003, the contraband was seized from an autorickshaw. CRL.A NO. 1504 OF 2006 5 Ext.P3 is the seizure mahazar. Ext.P9 is the property list. As per the property list, the properties were reached the Court on 19.4.2003. Thereafter, the sample was forwarded for chemical analysis based on Ext.P10 forwarding note. Ext.P12 is the analyst report. I perused Ext.P10 forwarding note. A perusal of Exts.P10 and P12 will show that the sample was sent to the Analyst through one Police Constable No.7116. The Police Constable, who took the sample to the Analyst is not examined in this case. It is a settled position that the prosecution should prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. PW1 is the alleged independent witness who attested the mahazar. He was turned hostile. The seizure mahazar in which PW1 was alleged to be signed was not even put to the witness by the prosecution. PW2 is the Police Constable. PW2 deposed that he was a witness to the search and seizure including the arrest of the appellant. PW2 has no case that he produced the sample before the Analyst. PW3 is the detecting officer. He also deposed about the search, seizure and arrest of the accused. PW3 also has no case about the entrustment of the sample to CRL.A NO. 1504 OF 2006 6 the Analyst. PW4 is the officer who conducted subsequent investigation after the preliminary investigation conducted by PW3. PW4 also has no case about the entrustment of the sample to the Analyst by the Police Constable bearing No.7116 which is mentioned in Ext.P12 analyst report.
8. It is a settled position that in abkari cases the prosecution has to prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. Here is a case where the prosecution miserably failed to prove all the links starting from seizure till it reaches in the hands of the Analyst. For that reason itself, the accused is entitled the benefit of doubt.
9. Moreover, the final report was submitted before the Court only on 04.07.2003 whereas the seizure was on 18.04.2003. In Abkari cases, after search, seizure and arrest, there is nothing more to investigate. The investigating officer is duty bound to complete the investigation. There is absolutely no explanation for the prosecution for the delay in conducting the investigation. This Court considered the consequence of unexplained delay in investigation in detail in Kumaran v. CRL.A NO. 1504 OF 2006 7 State of Kerala [2016 (4) KLT 718] and Mukundan v. State of Kerala [2016 (3) KLT 532].
In the light of the above discussion, the appellant is entitled the benefit of doubt. Therefore, this criminal appeal is allowed in the following manner:
1. The conviction and sentence imposed on the appellant as per the judgment dated 03.07.2006 in S.C.No.278/2004 on the file of the Additional Sessions Judge (Adhoc-II), Ernakulam is set aside.
2. The bail bond, if any, executed by the appellant and sureties are cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS