Kerala High Court
Unni @ Unnikrishna Pillai vs State Of Kerala on 8 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942
CRL.A.No.2199 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 658/2004 DATED 29-09-2006
OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT IN CP 35/2004 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,THIRUVALLA
APPELLANT/ACCUSED:
UNNI @ UNNIKRISHNA PILLAI
S/O.RAMAKRISHNAN PILLAI,
UDAYALAM, THALAYAR MURI, KUTTOOR VILLAGE.
BY ADV. SRI.R.SANTHOSH BABU
RESPONDENT/COMPLAINAN:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR
SMT. SHAMSEERA C. ASHRAF, AMICUS CURIAE.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.2199 OF 2006
2
JUDGMENT
The appellant was convicted and sentenced by the
court below under Section 8(2) of the Abkari Act.
2. The prosecution allegation is that on
29.03.2003 at about 10 a.m., the appellant was found
in possession of 1 litre of arrack, in contravention of
the provisions of the Abkari Act.
3. Since there is no representation for the
appellant, this Court has appointed Adv.Shamseera
C.Asharaf as Amicus Curiae to argue the case for the
appellant.
4. Heard the learned Amicus Curiae and the
learned Public Prosecutor.
CRL.A.No.2199 OF 2006
5. The learned Amicus Curiae has argued that
since there was inordinate and unexplained delay in
producing the contraband and the sample before the
court, the appellant is entitled to benefit of doubt.
6. It appears that the incident in this case was
on 29.03.2003. Ext.P4 is the property list which would
show that the contraband and the sample were
produced before the court only on 08.04.2003. PW5
produced the contraband and the sample before the
court. PW5 stated in the cross-examination that even
though he produced the sample and the contraband
on the same day before the court, the court returned
the same as there was no space in the court. However,
there is no endorsement on Ext.P4 to show that the
contraband and the sample were produced by PW5
before the court on 29.03.2003 as stated by PW5. No
other document is also available before the court to
CRL.A.No.2199 OF 2006
indicate that the contraband and the sample were
produced before the court on any day prior to 08.04.2003.
On the other hand, the endorsement on Ext.P4 would
clearly show that the contraband and the sample were
produced before the court only on 08.04.2003. In view of
the above, it is not safe to rely on the evidence of PW5 in
this regard. There is also no convincing evidence with
regard to the safe custody of the contraband and the
sample till their production before the court. It is
not discernible as to why the contraband and the sample
could not be produced before the court along with the
appellant even though the quantity of contraband involved
in this case was only one litre. Since there was
unexplained delay from 29.03.2003 to 08.04.2003 in
producing the contraband and the sample before the
court, there cannot be any guarantee that the sample
produced before the court and analysed in the laboratory
was the sample drawn from the contraband seized from
CRL.A.No.2199 OF 2006
the appellant, particularly when there is no evidence
with regard to the safe custody of the sample till its
production before the court. In the said circumstances,
the appellant is, no doubt, entitled to benefit of doubt.
In the result, this criminal appeal stands allowed,
setting aside the conviction and sentence passed by
the court below and the appellant stands acquitted.
The bail bond of the appellant stands discharged.
Sd/-
B.SUDHEENDRA KUMAR
JUDGE
Nkr/08.03.2021
