Kerala High Court
Ayyappan vs The 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.244 OF 2008
AGAINST THE ORDER/JUDGMENT IN SC 503/2006 DATED 31-12-2007 OF
ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT NO.III),
MANJERI
APPELLANT/ACCUSED:
AYYAPPAN
S/O.KUNHOLUMBAN,
PANAKKAL COLONY,
THIROORANGADI,
MALAPPURAM DIST.
BY ADVS.
SRI.BABU S. NAIR
SRI.K.RAKESH
SMT.M.T.SHEEBA
SRI.JIJO PAUL
RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY THE EXCISE INSPECTOR,
PARAPPANANGADI
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
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.244 OF 2008
2
JUDGMENT
Dated this the 25th day of March 2021
The accused in S.C.No.503/2006 on the file of the
Additional Sessions Court, Fast Track III (Adhoc),
Manjeri has filed this appeal being aggrieved by the
judgment dated 31.12.2007, whereby he has been found
guilty of offence under Sections 8(1) & 55(a) of the
Abkari Act and sentenced to undergo rigorous
imprisonment for a period of 6 months and to pay a fine
of ₹1,00,000/- and in default of payment of fine to
undergo simple imprisonment for another period of one
month.
2. The case of the prosecution is that on
22.08.2005 at about 6.30 p.m., the accused was found
transporting 1½ litres of illicit arrack. Before the
court below, the prosecution has examined PW1 to PW6
and marked Exts.P1 to P9. On the basis of the evidence
on record, the court below found the appellant guilty
CRL.A.No.244 OF 2008
of the offence and imposed on him the sentence referred
above.
3. Heard Sri.Babu S.Nair, learned counsel on
behalf of the appellant and Smt.Sylaja, learned Public
Prosecution on behalf of the State.
4. The learned counsel for the appellant contends
that this is a case where there is unexplained delay in
the completion of the investigation by the prosecution.
It is submitted that even though the Chemical
Examiner's report is dated 25.04.2006, the charge was
laid only on 18.09.2006, for which there is no
explanation. Counsel submits that there is no more
investigation conducted after receiving the chemical
analysis report. This Court in Krishnan H. V. State
(2015 (1) KHC 822) held that unexplained delay in the
investigation will entitle the accused to the benefit
of doubt. The contention of the counsel for the
appellant cannot be found fault with.
CRL.A.No.244 OF 2008
5. More over it is seen that the contraband
articles were produced before the Court on 22.08.2005.
and the forwarding note is claimed to have been
submitted on the next day of the offence. The
Magistrate has counter signed the document but there is
no date written below the initials of the Magistrate to
indicate the date on which the despatch of the sample
was done. It would appear from the chemical analysis
report Ext.P7, that the samples were received along
with the reference letter dated nil only on 02.09.2005.
There is no clarity regarding the custody of the sample
from the date of the forwarding note and 02.09.2005.
This Court in Kumaran v. State of Kerala (2016 (4) KLT
718) has held that the failure to put the date along
with the signature of the Magistrate is fatal for the
prosecution case since there will be no evidence
available regarding the actual date of despatch.
6. In the circumstances, the appellant is entitled
to succeed. In the result, the judgment dated
31.12.2007 in S.C.No.503/2006 on the file of the
CRL.A.No.244 OF 2008
Additional Sessions Court, Fast Track III, (Adhoc)
Manjeri is set 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
