Subbanna Shetty vs The Excise Inspector
2021 Latest Caselaw 11509 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.1484 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 783/2004 DATED 20-06-2006 OF
         ADDITIONAL SESSIONS COURT (ADHOC 1), KASARAGOD

  AGAINST THE ORDER/JUDGMENT IN CP 167/2004 DATED 13-09-2004 OF
         JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD



APPELLANT/ACCUSED:

             SUBBANNA SHETTY,
             S/O. BHATTU SHETTY,
             NEAR ICHILAMKODU VILLAGE OFFICE,
             KASARAGOD.

             BY ADVS. SRI.M.RAMESH CHANDER (SR.)
                       SRI.BALU TOM


RESPONDENTS/COMPLAINANT & STATE:

      1      THE EXCISE INSPECTOR,
             KUMBALA RANGE,
             KASARAGOD.

      2      THE STATE OF KERALA
             REP. BY ITS 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.1484 OF 2006

                                        2



                                 JUDGMENT

Dated this the 8th day of April 2021

The accused in S.C.No.783/2004 on the file of the

Additional Sessions Court (Adhoc 1), Kasaragod has

filed this appeal being aggrieved by the judgment dated

20.06.2006, whereby he has been found guilty of offence

under Section 55(a) of the Abkari Act and convicted and

sentenced to undergo rigorous imprisonment for a period

of 6 months and to pay a fine of ₹1,00,000/- and in

default of payment of fine to undergo rigorous

imprisonment for a further period of one month.

2. The case of the prosecution is that on

22.12.2001 at 4.00 p.m., the accused was found in

possession of 6 plastic bottles, each containing 750 ml

of Indian Made Foreign Liquor produced in the State of

Karnataka, which was being transported in a plastic bag

along the public road in Kubannur Village. Before the

court below, the prosecution examined PW1 to PW4 and

Exts.P1 to P6 were marked. On the basis of the

evidence on record, the court below found the accused CRL.A.No.1484 OF 2006

guilty of offence, convicted him and imposed on him the

sentence referred above.

3. Heard Sri.Balu Tom, learned counsel on behalf

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

Prosecutor on behalf of the respondent.

4. Learned counsel for the appellant submits that

the incident is said to have happened on 22.12.2001,

but the occurrence report has been prepared only on

23.12.2001. So also, the scene mahazar has been

prepared by the Investigating Officer on 13.07.2004,

almost 3 years after the incident. It is submitted

that such a delay will fatally affect the prosecution

case and the accused will be entitled to the benefit of

doubt. No arrest memo has been produced by the

prosecution before the Court below.

5. Apart from the above facts, on going through

the records, I find that the forwarding note has been

prepared on 23.12.2001. But Ext.P4 forwarding note,

which has been produced in the case, does not give any

indication as to the day on which the sample was sent CRL.A.No.1484 OF 2006

for chemical analysis. Even though the countersignature

of the Magistrate is available in the form of an

initial, no date has been written along with the

initial indicating the date of despatch of the sample.

It is seen from the property list, which is produced as

Ext.P3 that the entire contraband articles, which were

produced before the Court was returned on 01.01.2002 to

the Excise Inspector, Kumbala for safe custody. Ext.P5

which is the report of the Chemical Examiner shows that

the sample was received by him only on 09.01.2002.

There is absolutely no explanation for the delay and

regarding the safe custody of the contraband and the

sample, after the same was returned from the court.

This Court has held in the decision reported in

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

the failure to produce the arrest memo is fatal for the

prosecution case. This Court has also held that the

failure to write the date on which the Magistrate had

countersigned the forwarding note is fatal for the

prosecution case. [See Kumaran v. State of Kerala CRL.A.No.1484 OF 2006

(2016 (4) KLT 718)]. The delay in conduct of the

investigation is also a fact, which favours the

accused. Non-production of the arrest memo has also

been held by this Court to be fatal for the prosecution

case as there is no proof regarding the factum of

arrest in the manner and at the time and place alleged

by the prosecution.(See Ramankutty v. Excise Inspector

[2013 (3) KHC 308])

6. In the above circumstances, the appellant is

entitled to succeed in this appeal. The judgment dated

20.06.2006 in S.C.No.783/2004 on the file of the

Additional Sessions Court (Adhoc 1), Kasaragod is set

aside. The appellant is acquitted and set at liberty.

The bail bonds, if any, executed by the appellant or on

his behalf are cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn