Kerala High Court
T.K.Dinessan vs State Of Kerala on 25 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943
CRL.A.No.2371 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 159/2005 DATED 12-11-2007 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA
APPELLANT/ACCUSED:
T.K.DINESSAN
S/O. KANNAN NAMBIAR,
KUPPADITHARA, WAYANAD (DISTRICT).
BY ADVS.
SRI.P.K.VARGHESE
SRI.E.C.BINEESH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. S.L SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2371 OF 2007
2
JUDGMENT
Dated this the 25th day of March 2021
The accused in S.C.No.159/2005 on the file of the
Additional Sessions Court (Adhoc) II, Kalpetta has
filed this appeal, being aggrieved by the judgment
dated 12.11.2007, whereby he has been found guilty of
offence under Sections 8(1)&(2) of the Abkair Act and
sentenced to undergo rigorous imprisonment for a period
of 2 years 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 3 months.
2. The case of the prosecution is that on
17.04.2004, the accused was found in possession of 6
litres of arrack. Before the court below the
prosecution examined PW1 to PW5 and marked Exts.P1 to
P7 in evidence. On the basis of the evidence on
record, the court below found the accused guilty of the
offence charged against him and imposed the sentence
CRL.A.No.2371 OF 2007
referred above.
3. Heard.
4. Even though several grounds have been raised in
the memorandum of appeal, I find that the appellant is
entitled to succeed on two grounds. Firstly, even
though the offence is detected on 17.04.2004, the
contraband articles were produced before the court only
on 19.04.2004. There is absolutely no evidence
forthcoming regarding the delay in production of the
contraband before the court. This Court has held in
several decisions that the delay in production of the
contraband before the court is fatal to the
prosecution. [see Ravi v. State of Kerala (2018 (5) KHC
352), Ramankutty v. Excise Inspector (2013 (3) KHC 308)
& Balachandran V. State of Kerala (2020 (3) KHC 697)].
Secondly, it is seen from the forwarding note produced
as Ext.P5 shows that the Assistant Excise Inspector has
signed it on 17.04.2004. From the seal on the
forwarding note, it is seen that it was received on
CRL.A.No.2371 OF 2007
19.04.2004. Even though the Magistrate has counter
signed the document, there is no date mentioned below
the signature. It would appear from Ext.P7 report of
the Chemical Examiner that the sample was received
along with a reference latter dated 19.04.2004 only on
24.04.2004. There is absolutely no evidence regarding
the possession of the sample between the date
19.04.2004 & 24.04.2004. The evidence does not show
the exact date of despatch of the sample. In the
circumstances, the prosecution cannot be said to have
proved beyond any reasonable doubt that the sample
which was taken at the spot of occurrence had reached
the Chemical Examiner in tamper proof condition and
that the Examiner has analysed the very same sample and
submitted the report.
5. In the circumstances, the appellant is entitled
to succeed. In the result, the judgment dated
12.11.2007 in S.C.No.159/2005 on the file of the
Additional Sessions Court, (Adhoc) II, Kalpetta is set
CRL.A.No.2371 OF 2007
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
