Kerala High Court
Vinod vs State Of Kerala on 22 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.185 OF 2006
AGAINST THE JUDGMENT IN SC 147/2003 DATED 30-12-2005 OF ADDITIONAL
SESSIONS JUDGE (ADHOC-I), KALPETTA
APPELLANTS/ACCUSED:
1 VINOD, S/O.BABURAJ,THAZHATH VEEDU ARAPETTA,
MUPPAINAD, MEPPADY P.O., WAYANAD DISTRICT.
2 KUMARAN S/O. APPU THAZHE ARAPETTA
ESTATE, RESIDING AT PADIYIL, MUPPAINAD AMSOM,
WAYANAD DISTARICT.
BY ADVS.
SRI.P.K.JOSE
SMT.TESSY JOSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY SMT.MAYA.M.N, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.185/2006
2
P.V.KUNHIKRISHNAN, J.
Crl.A.No.185/2006
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Dated this the 22nd day of February 2021
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JUDGMENT
The appellants are accused in S.C.No.147/2003 on the files of the
Additional Sessions Judge (Adhoc)-I, Kalpetta. The above case is
charge sheeted against the appellants under Section 55(a) and 8(1) of
the Abkari Act.
2. The prosecution case is that, on 08.03.2002 at 5.45 pm the
1st accused sitting on a motor bike bearing registration No.KL-12A-
3192, handed over an arrack bottle taken from the cover fitted on the
petrol tank of the motor bike to the 2 nd accused and he in turn served
the arrack in glass to others and hence committed the offence alleged.
3. To substantiate the case, the prosecution examined PW1 to
PW6 and Exts. P1 to P13 were marked. MO1 series to MO3 series were
the material objects. After going through the evidence and
documents, the trial court found that the accused committed the
offence under Section 55(a) of the Abkari Act. They were sentenced to
undergo rigorous imprisonment for one year each and to pay a fine of
Crl.A.No.185/2006
Rs.1,00,000/- each under Section 55(a) of the Abkari Act and in default
of payment of fine, to undergo rigorous imprisonment for three months
more. Aggrieved by the above conviction and sentence, this criminal
appeal has been filed.
4. Heard the counsel for the appellants and the Public
Prosecutor.
5. The counsel for the appellants submits that there is a long
delay of 40 days in producing the contraband articles before Court and
there is no proper explanation for the same. That itself is enough to
acquit the appellants/accused. Public Prosecutor submitted that there
is oral and documentary evidence to prove the case. Public Prosecutor
submits that this Court may not acquit the accused persons on
technical grounds.
6. The point for consideration is whether the accused
committed offence under Section 55 (a) of the Abkari Act.
7. Admittedly the alleged seizure and arrest was on 8.3.2002.
The contraband articles were produced before Court only on
19.4.2002. There is no proper explanation for the delay in not
producing the contraband articles before court. The learned Sessions
Judge dismissed this contention observing that, if at all there is such a
delay, that is not fatal to the prosecution. I cannot agree with the
learned Judge on this point. As per the Abkari Act, it is a mandate to
the Officer concerned to produce the contraband articles before the
Crl.A.No.185/2006
Court forthwith. If there is no proper explanation for the delay in
producing the contraband article, that itself can be a ground for
acquitting the accused.
8. In this case, admittedly, there is 40 days delay in producing
the article. There is no explanation from the part of the prosecution
regarding the delay in producing the sample before the court. This
point is also considered by this Court in Sukumaran v. State of
Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police,
Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala
(2018(1) KLT 822). Relevant portion of the judgment in Ravi's case
(supra) is extracted hereunder:
"8. In order to support the argument, the learned counsel for
the appellant cited the ruling in Ramankutty v. Excise
Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ
434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is
held that 'in the absence of satisfactory explanation by the
prosecution showing the cause of delay, even delay of one day
is fatal to the prosecution and therefore, the accused is
entitled to the benefit of doubt.
9. In the instant case, there is a delay of four days in
producing the contraband articles before the Court. According
to the evidence of PW4, it was kept under his safe custody. But,
he has to explain that these contraband articles were produced
before the Court with tamper proof. Moreover, Ext.P6 is the
copy of the forwarding note. It does not contain the seal, which
was alleged to have affixed on the sample. So, without
verifying the sample seal, the Court cannot act upon Ext.P6
copy of the forwarding note."
Crl.A.No.185/2006
In the light of the above discussion, I think that the appellants are
entitled to the benefit of doubt.
Therefore, Crl.A.No.185/2006 is allowed. The conviction and
sentence imposed on the appellants as per judgment dated
30.12.2005 in S.C.No.147/2003 on the files of the Additional Sessions
Judge (Adhoc)-I, Kalpetta are set aside. The appellants are set at
liberty. Bail bonds, if any, executed by them are cancelled.
Sd/-
P.V.KUNHIKRISHNAN
kp True copy JUDGE
P.A. To Judge
