Kerala High Court
Pavanaraj vs State Of Kerala on 26 March, 2021
Crl.A.2025 of 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943
CRL.A.No.2025 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 469/2004 DATED 27-09-2006 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
AGAINST THE ORDER/JUDGMENT IN CP 6/2004 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,ADIMALI
APPELLANT/ACCUSED:
PAVANARAJ
S/O.PERIYAKARUPPAN,
RGP III/346, NUMBER VEEDU,
KHAJANAPPARA KARA,
RAJAKUMARI VILLAGE.
BY ADV. SRI.SAJI MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2025 OF 2006
2
JUDGMENT
Dated this the 26th day of March 2021
The accused in S.C.No.469/2004 on the file of the Additional
Sessions Court (Adhoc) II, Thodupuzha has filed this appeal being
aggrieved by the judgment dated 27.09.2006, whereby he was
found guilty of offence under Section 8(2) of the Abkari Act and
sentenced to undergo rigorous imprisonment for 1 year and to pay
a fine of ₹1,00,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of 3 months.
2. The case of the prosecution is that on 03.12.2002 at
about 5.15 p.m., the accused was found selling arrack, by the Sub
Inspector of Police, Rajakkadu. Before the court below, the
prosecution examined PW1 to PW3 and Exts.P1 to P6 were marked.
MO1 and MO2 were identified and marked. On the basis of the
evidence on record, the court below found the accused guilty of
offence and imposed on him the sentence referred above.
3. Heard.
4. Even though several grounds have been taken in the
memorandum of appeal, on a perusal of the evidence on record, I
CRL.A.No.2025 OF 2006
find that there are several infirmities in the prosecution case. The
offence is said to have been detected on 03.12.2002 and the
accused is stated to have been arrested on that date. However,
Ext.P3 property list which is seen dated 4.12.2002 was actually
produced before the Court only on 7.12.2002. That is, there is a
delay of 4 days in producing the contraband arrack before the
Court, for which there is no explanation in the prosecution
evidence. It has been held by this Court in several judgments that
the delay in production of the contraband articles before the court,
if not explained, is fatal to the prosecution case. [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)].
5. Apart from the aspect of delay, Ext.P4 forwarding note
produced in the case shows that it has been prepared on
4.12.2002. However the counter signature of the Magistrate does
not indicate the date on which the signature was put. The document
does not indicate the name of the officer with whom the sample is
to be sent of analysis. There is no indication regarding the date of
despatch. A covering letter written by the Magistrate is seen
CRL.A.No.2025 OF 2006
attached to Ext.P4 which shows that in a carbon copy of a letter, a
date and name of the Police Constable is inserted. The date shown
is 21.12.2002. The report of the analyst shows that the sample was
received on 23.12.2002. The above infirmities are also fatal for the
prosecution. [See Jayakumar v. State of Kerala (2018 KHC 3165),
Kumaran v. State of Kerala (2016 (4) KLT 718)].
6. In the above circumstances, the appellant is entitled to
succeed. The judgment dated 27.09.2006 in S.C.No.469/2004 on
the file of the Additional Sessions Court (Adhoc) II, Thodupuzha 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
dsn
