Shiju vs State Of Kerala
2021 Latest Caselaw 11434 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                      CRL.A.No.2311 OF 2006

   AGAINST THE ORDER/JUDGMENT IN SC 245/2006 OF III ADDITIONAL
         SESSIONS COURT (ADHOC) FAST TRACK 1, THRISSUR

AGAINST THE ORDER/JUDGMENT IN CP 26/2006 OF JUDICIAL MAGISTRATE OF
                    FIRST CLASS, IRINJALAKUDA



APPELLANTS/ACCUSED:

      1      SHIJU
             S/O.PALAPARAMBIL ANANDAN,
             PULIKKANNI, VARANDARAPPILLY.

      2      VINEED, S/O.KOOTTALA RAGHAVAN
             NADAPADOM, VARANDARAPPILLY.

             BY ADVS.
             SRI.P.VIJAYA BHANU
             SRI.P.M.RAFIQ


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2311 OF 2006

                                      2



                              JUDGMENT

Dated this the 8th day of April 2021

The accused in S.C.No.245/2006 on the file of the

III Additional Sessions Court (Adhoc) Fast Track 1,

Thrissur have filed this appeal being aggrieved by the

judgment dated 08.11.2006, whereby they have been found

guilty of offence under Section 55(g) of the Abkari Act

and sentenced to undergo rigorous imprisonment for

three years each and to pay a fine of ₹1,00,000/- each

and in default of payment of fine to undergo simple

imprisonment for three months each.

2. The case of the prosecution is that on

28.09.2004 at 12.20 p.m., the accused were found in

possession of 500 litres of wash for the purpose of

manufacturing arrack, on the northern bank of

Pulikkanni River near the Cochin Malabar Estate.

Before the court below, the prosecution examined PW1 to

PW4 and Exts.P1 to P6 were marked. MO1 and MO2 were

produced and identified. On the basis of the evidence

on record, the court below found the accused guilty of CRL.A.No.2311 OF 2006

offence, convicted them and imposed on them the

sentence referred above.

3. Heard Sri.P.M.Rafiq, learned counsel on behalf

of the appellants and Smt.S.L.Sylaja, learned Public

Prosecutor on behalf of the respondent.

4. The counsel for the appellants points out that

the appellants are entitled to succeed in this appeal

on several grounds. Firstly, the prosecution has not

produced the arrest memo to prove the arrest of the

accused and the manner of arrest by the prosecution,

which was fatal to the prosecution case. [see

Ramankutty V. Excise Inspector (2013 (3) KHC 308)].

Secondly, the forwarding note along with which the

sample was sent for chemical analysis has not been

produced, proved and marked in the case. The failure

to produce the forwarding note is fatal for the

prosecution case. [see Unnikrishnan Nair V. State of

Kerala reported in (2020 (3) KHC 455) and Sadasivan @

Para V. State of Kerala reported in (2020 KHC 478)].

It is further submitted that admittedly the entire wash CRL.A.No.2311 OF 2006

was destroyed at the scene of occurrence, which could

not have been done in the light of the amendment to the

Abkari Act, whereby Section 53A was introduced,

providing the manner in which the contraband articles

should be disposed of. Section 53A of the Abkari Act

mandates that while disposing of the contraband

articles, the authorised officer has to prepare an

inventory of such liquor/intoxicating drug and make an

application to any Magistrate having jurisdiction over

the area for the purpose of certifying the correctness

of the inventory or for taking, in the presence of such

Magistrate, the photographs of such liquor/intoxicated

drug or for permission to draw representative samples

of such liquor. This Court has held in several

judgments that the procedure prescribed under Section

53A is mandatory and failure to follow the said

procedure will create suspicion regarding the very

seizure of the contraband. (See Balakrishna Rai v.

State of Kerala [2020 (3) KHC 286], Damodaran v.

Station House Officer and Another [2007 (4) KHC 936] CRL.A.No.2311 OF 2006

and Appu v. State of Kerala [2016 (5) KHC 310]). The

prosecution has no case that the procedure prescribed

in Section 53A has been followed in this case. For

that reason also the prosecution has to fail.

5. I find considerable force in the contentions

raised by the counsel for the appellants. The

appellants are entitled to succeed on all the above

grounds. Hence the judgment dated 08.11.2006 in

S.C.No.245/2006 on the file of the III Additional

Sessions Court (Adhoc) Fast Track I, Thrissur is set

aside. The appellants are acquitted and set at

liberty. The bail bonds, if any, executed by the

appellants or on their behalf are cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn