Biju vs State Of Kerala
2021 Latest Caselaw 3821 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                        CRL.A.No.1108 OF 2007

 AGAINST THE JUDGMENT IN SC 132/2002 OF ADDITIONAL SESSIONS COURT
                   (ABKARI CASES), KOTTARAKKARA


APPELLANTS/ ACCUSED :

      1      BIJU,
             S/O.JANARDHANAN, KALLUVILA VEEDU,
             THAZHEKKADAVATHUKKAL, PLACHERRY WARD,
             VALACODU VILLAGE, KOLLAM DISTRICT.

      2      SARADANANDAN @ REMESAN,
             S/O.CHELLAPPAN, MADA AYYATHU VEEDU,
             VILAKKUVATTOM MURI, VALACODU VILLAGE,
             KOLLAM DISTRICT.

             BY ADVS.
             SRI.R.SURAJ KUMAR
             SMT.GEETHA P.MENON


RESPONDENT/ COMPLAINANT :


             STATE OF KERALA,
             REP.BY THE GOVERNMENT PLEADER,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY PUBLIC PROSECUTOR ADV.SYLAJA S.L.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :
 CRL.A.No.1108 OF 2007

                                     2




                              JUDGMENT

Dated this the 2nd day of February 2021

Appellants challenge the conviction and sentence imposed

in SC.No.132/2002 on the files of the Additional Sessions Court

(Abkari cases), Kottarakkara. As per the judgment dated

25.05.2007, the appellants were convicted for the offence punishable

under Sections 55(a) and (i) of the Abkari Act, 1077 (for short, 'the

Act').

2. The prosecution case was that on 25.01.2000, in the

early morning hours, at 1.05 a.m., the accused were found in

possession of 168 bottles of New Mater XXX Rum foreign liquor

intended for sale and in transit in the dicky of an ambassador car

bearing No.KL/02/A/8244. The car was driven by the 2 nd accused

while the first accused was a passenger. The vehicle was stopped

and the contraband articles were seized after apprehending the

accused. Crime No.67/2000 of the Punalur Police Station was

registered and after completion of investigation, final report was filed

before the Magistrate's Court, who, on realising that it is an offence CRL.A.No.1108 OF 2007

triable exclusively by the Court of Sessions, committed the same

under Section 209 Cr.P.C. to the Sessions Court, Kollam. The case

was thereafter transferred to the Additional Sessions Court for Abkari

cases.

3. In order to prove the prosecution case, PWs 1 to 8

were examined and Exts.P1 to P10 were marked, apart from material

objects as MOs 1 to 8. The defence examined DW1 to prove the

defence version.

4. After appreciating the evidence adduced in the case,

the learned Sessions Judge found the accused guilty and sentenced

them to undergo simple imprisonment for two years and to pay a fine

of Rs.1,00,000/- each, in default to undergo simple imprisonment for

six months for the offence under Section 55(a) of the Act.

5. I have heard the learned counsel for the appellants as

well as the learned Public Prosecutor Adv.Sylaja S.L.

6. On a perusal of the facts arising in the case, it is

noticed that even though the seizure of the contraband articles were

made on 25.01.2000, the same were produced in court only on

21.02.2000. PW7, who was the investigating officer, in his evidence

stated that he had produced contraband articles before the CRL.A.No.1108 OF 2007

Magistrate's Court immediately and the same were directed by the

court to be kept in the safe custody of the police. Even though he

attempted to explain the delay in producing the contraband articles

before the court, the documents produced and marked before court

do not evidence any material to support the deposition of PW7. If the

court had returned the material objects back to the police, the same

should have reflected in the documents marked in the court below.

Not a single document shows that material objects in the instant case

were produced before the court at any period of time prior to

21.02.2000. In such circumstances, the delayed production of the

contraband articles is left unexplained and that creates doubt on the

prosecution story.

7. Yet another surprising feature of this case is that, even

though the sample of contraband articles were sent for chemical

analysis, the forwarding note has not been marked in evidence. It is

settled through numerous decisions that the failure to produce the

forwarding note renders the entire prosecution case unworthy of

belief and the accused is entitled to get the benefit of such failure.

Reference in this context is invited to the recent decision in

Sadasivan @ Para v. State of Kerala and Another [2020 KHC

478] wherein it has been reiterated that non-production of the CRL.A.No.1108 OF 2007

forwarding note is fatal to the prosecution and that alone is a

sufficient ground to acquit the accused.

8. In the instant case on account of the delayed

production of the contraband seized before the court and on account

of the failure of the prosecution to produce and mark the forwarding

note before the learned Sessions Court, I am of the view that the

prosecution story does not inspire confidence and the accused are

entitled to be acquitted.

In the above circumstances, the conviction and sentence

imposed on the accused by judgment dated 25.05.2007 in

SC.No.132/2002 on the files of the Additional Sessions Court (Abkari

cases), Kottarakkara is liable to be set aside and the accused are

acquitted. The bail bond, if any furnished by the accused shall stand

cancelled and the fine amount, if remitted shall be refunded

forthwith.

The Criminal Appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM