Ajayan vs State Of Kerala
2021 Latest Caselaw 17662 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                   THE HONOURABLE MR. JUSTICE GOPINATH P.

           FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943

                             CRL.A NO. 2078 OF 2006

   AGAINST THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE ADDITIONAL

        DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC), MAVELIKKARA

                 IN SESSIONS CASE NO.33/2002 DATED 3.10.2006

APPELLANT/1ST ACCUSED:

            AJAYAN,
            S/O.RAGHAVAN,
            MANNIL VEEDU,
            MULAKUZHAMURI,
            CHENGANNUR.

            BY ADVS.
            SMT.R.BINDU SASTHAMANGALAM
            SRI.M.P.PRASANTH



RESPONDENT/COMPLAINANT:

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



OTHER PRESENT:

            SRI.C.S.HRITHWIK-SR.PP



      THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2078 of 2006

                                        2



                              JUDGMENT

Dated this the 27th day of August, 2021

This appeal has been filed challenging the conviction and

sentence imposed on the applicant/1 st accused in S.C.No.33/2002 on the

files of the Additional District and Sessions Judge, Fast Track (Adhoc),

Mavelikkara.

2. The gist of the prosecution case is that the applicant/1 st accused

together with one other person, were found transporting 135 litres of spirit

in three plastic containers in an autorickshaw, thereby committing offences

under Sections 55(a), 55(i), 65 and 67 of the Abkari Act. Following the

investigation of the case, a final report was filed in the matter. The 2 nd

accused had absconded as a result of which, the charge against him was split

up and refiled. The appellant/1 st accused pleaded not guilty to the charge

framed against him. Following trial, and on analysis of the evidence

tendered by PWs 1 to 7 and the contents of Exts. P1 to P12 and on Mos 1 and

2 being identified, the trial court convicted the appellant/1 st accused and

sentence him to undergo rigorous imprisonment for a period of three years

and to pay a fine of Rs.1 lakh for the offence punishable under Section 55(a)

of the Abkari Act. In default of payment of fine, the accused was directed to

undergo rigorous imprisonment for a further period of one year. Set off as

permissible under law was granted. The appellant/1st accused was found not Crl.A.No.2078 of 2006

guilty of offences punishable under Sections 55(i), 65 and 67 of the Abkari

Act.

3. Sri.R.Bindu Sasthamangalam, the learned counsel appearing for

the appellant would submit that the appeal is liable to be allowed on a short

point. He submits that the incident which led to the laying of the final report

took place on 11.10.1998 at 3.15 AM. With reference to Ext.P4 report filed

by the Excise Inspector of Chengannur Excise Range, before the court, he

would submit that the entire quantity of the spirit seized from the

appellant/1st accused was handed over to the Travancore Sugars and

Chemicals Ltd, a Government of Kerala company and all that was remaining

were the samples drawn at the time of seizure. Reading of the report shows

that the samples drawn in the matter were produced before the court only

on 29.07.2006, along with the report marked as Ext.P4. Ext.P4 report also

shows that the seals and labels affixed on the samples were destroyed on

account of passage of time. There is a no explanation for the inordinate

delay in producing the samples before the court.

4. I heard the learned Public Prosecutor also.

5. The chemical analysis and identity of the contraband articles

seized from an accused and the sample is crucial for establishing the guilt of

the accused in a prosecution under the provisions of the Abkari Act. In the

facts of the present case, Ext.P4 report suggests that the labels and the seals Crl.A.No.2078 of 2006

fixed on the sample bottles have been lost due to the passage of time. This

by itself is sufficient to establish that the prosecution has failed to establish

any link between the materials seized from the appellant/1 st accused and the

samples produced in court. The perusal of the evidence tendered by the

PW1 also does not offer any convincing explanation for the delay in

producing the samples and for the loss of the labels and the seals affixed on

the samples. Though the impugned Judgment in S.C.No.33 of 2002 makes

reference to the statement of PW1 that the contraband was produced before

the court on the date of detection itself, the record shows otherwise. In that

view of the matter, the appellant/1st accused is entitled to be acquitted.

Accordingly, this appeal is allowed and the conviction and

sentence imposed on the appellant/1st accused in S.C.No.33 of 2002 on the

files of the Additional District & Sessions Judge, Fast Track (Adhoc),

Mavelikkara, will stand set aside and the appellant/1 st accused will stand

acquitted.

Sd/-

GOPINATH P.

JUDGE

NR/27/08/2021