Madhusoodhanan Pillai vs State Of Kerala
2021 Latest Caselaw 6033 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

      THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                    CRL.A.No.920 OF 2006

AGAINST THE ORDER/JUDGMENT IN SC 694/2002 DATED 27-04-2006
     OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM

 AGAINST CP 87/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS-
                        II, KOLLAM

APPELLANTS/ACCUSED NO.1&2:

      1     MADHUSOODHANAN PILLAI,
            S/O.KESHAVA PILLAI,
            PUTHEN VEEDU,
            KANIYAMTHODI (SOUTH),VETTILATHAZHAM CHERRY,
            THRIKKOVILVATTAM VILLAGE.

      2     VIJAYAN,
            S/O.KUMARAN,
            PUTHUVAL PURAYIDAM,
            NEAR KURIA RAILWAY LINE(SOUTH),
            CANTONMENT WARD,
            KOLLAM VILLAGE.

            BY ADV. SRI.C.RAJENDRAN

RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REP. BY SUB INSPECTOR OF POLICE,
            KOTTIYAM POLICE STATION,
            THROUGH THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM.

            BY SMT.SYLAJA S.L., PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-
02-2021, THE COURT ON 19-02-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.920/06                -:2:-




                                JUDGMENT

Dated this the 19th day of February, 2021

Appellants challenge the conviction and sentence imposed on

them by judgment dated 27.04.2006 in S.C. No.694 of 2002 on the

files of the Additional Sessions Judge (Adhoc) II, Kollam. By the

impugned judgment, the accused were found guilty for the offence

under Section 58 of the Abkari Act and were sentenced to undergo

rigorous imprisonment for a period of 4 years each and to pay a fine

of Rs.1,00,000/- each and in default of payment of fine to undergo

rigorous imprisonment for 1 year each.

2. The prosecution case was that on 27.01.1998 at around 3

a.m., the accused were found in possession of 140 litres of spirit, 115

litres of arrack and 400 plastic pouches filled with 100 ml of arrack in

each packet found kept in building bearing No.II/462, Madathil House

of Thrikkovilvattom Panchayat and they were charged with the

offence under Section 55(a) of the Abkari Act. The learned

Magistrate on noticing that the case was one exclusively triable by

court of sessions, committed the case for trial to the Sessions Court.

3. The prosecution examined PW1 to PW3 and marked Ext.P1

to Ext.P5, apart from MOI to MOIX.

4. After analysing the evidence adduced in the case, learned

Sessions Judge found the accused guilty and sentenced them to

imprisonment and fine, as mentioned above.

5. I have heard Sri.C.Rajendran, learned counsel for the

appellants as well as Smt.S.L.Sylaja, learned Public Prosecutor.

6. Though this is a case where large quantities of contraband

had been seized, unfortunately the manner in which the investigation

was carried out and the trial was conducted leaves much to be

desired. Though the contraband was seized on 27.1.1998, it was

produced in court only on 23.3.1998, i.e., 55 days after seizure. No

serious attempt was made to explain this long delay. In such

circumstances, the credibility of the seizure and the contraband

produced before court certainly cannot inspire any confidence in a

court of law. It is the mandate of Section 102 of the Cr.P.C., that the

seizure shall be reported to the Magistrate forthwith. This Court has

time and again directed that contraband seized must be produced

before a court without delay and when there is unexplained delay, the

same will affect the credibility of the prosecution case. Reference is

invited to the decision in Narayani v. Excise Inspector (2002 (3)

KLT 725).

7. Yet another circumstance also stares at the prosecution

evidence. It is settled by a catena of decisions of this Court that

failure to produce the forwarding note is fatal to the prosecution case.

Reference can be made to the decisions in Smithesh v. State of

Kerala (2019 (2) KLT 974), Sadasivan @ Para v. State of Kerala

and Another (2020 KHC 478) and Sajeevan v. State of Kerala

(2020 (6) KLT 53).

8. Prosecution has failed in the instant case to explain the

delay. Nothing stated in clarification to explain the long delay of 55

days. Further, the forwarding note is also not produced and marked

by the prosecution.

9. In view of the above two lacuna in the prosecution case, the

further points raised for consideration by the learned counsel for the

appellants as well as the learned Public Prosecutor need not be

considered. Suffice to say, the prosecution has miserably failed to

prove its case beyond reasonable doubt.

10. In the above circumstances, the conviction and sentence

imposed on the accused in S.C. No.694 of 2002 on the files of the

Additional Sessions Judge (Adhoc) II, Kollam, is hereby set aside

and the appellants are acquitted. The bail bonds, if any, executed

shall stand cancelled and fine amount, if any, remitted shall be

refunded forthwith.

The appeal is allowed as above.

Sd/-

                                     BECHU KURIAN THOMAS
                                           JUDGE
vps


                       /True Copy/                PS to Judge