Sundaran vs The Excise Inspector
2021 Latest Caselaw 8709 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

    TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                      CRL.A.No.2196 OF 2006

    AGAINST THE JUDGMENT IN SC.NO.346/2005 DATED 03-11-2006 OF
      ADDITIONAL DISTRICT COURT (ADHOC)-I, MANJERI DIVISION

 CP.NO.34/2005 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, TIRUR


APPELLANT/ACCUSED:

             SUNDARAN,
             S/O. MUNDAN,
             JHAVALTHODY HOUSE,
             NADUVATTOM,
             MANIYANGAD.

             BY ADV. SRI.T.G.RAJENDRAN

RESPONDENT/COMPLAINANT & STATE:

      1      THE EXCISE INSPECTOR,
             EXCISE RANGE, KUTTIPPURAM.

      2      STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SMT SYLAJA, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2196 OF 2006

                                 2


                         JUDGMENT

Dated this the 16th day of March 2021

The accused in SC.No.346/2005 on the file of the Court of

Additional Sessions Judge (Adhoc -I), Manjeri Division has filed

this appeal aggrieved by the judgment dated 03.11.2006

whereby he has been found guilty of offence under section 8(2)

of the Abkari Act and has been sentenced to undergo rigorous

imprisonment for two years and to pay of fine of Rs.1 lakh and

in default of payment of fine, to undergo rigorous imprisonment

for a further period of six months.

2. The case of the prosecution is that on 24.01.2004 at

7.30 p.m, PW1 and PW2 who are the Excise Inspectors of

Kuttippuram Excise Range and the Excise Guard attached to the

said office found the accused in possession and transporting 5

litres of arrack in a plastic can. It is stated that the accused was

arrested as per Ext.P1 arrest memo and that sample of the

arrack in the black can was taken in a bottle and the bottle and

the can were sealed. A mahazar was prepared and the

contraband articles and the records prepared at the scene of

occurrence and the accused were taken to the Excise office,

from where Ext.P6 case was registered against the accused. It is CRL.A.No.2196 OF 2006

stated that the property list and the contraband articles were

sent to the Court and the forwarding note had been prepared

and sent. On the basis of the evidence of record, the Court

below found the appellant guilty of offence charged against him

and imposed the sentence as aforesaid.

3. Heard Shri.T.G.Rajendran, learned counsel on behalf of

the appellant and Smt.Sylaja, learned Public Prosecutor on

behalf of the State.

4. The counsel for the appellant points out that the

jurisdictional Magistrate was on leave on the date of occurrence

of the offence and the records were produced before the

Magistrate in charge on 25.01.2004. It is contended that even

though the records were produced, the 'thondy' articles were not

produced before the Court and it was produced later, after the

jurisdictional Magistrate took charge. The counsel argues that

there is absolutely nothing in evidence to show where the

'thondy' articles were kept after the seizure and till the same

was produced before the jurisdictional Magistrate. I find

considerable force in the above contention raised by the

learned counsel for the appellant. It can be seen from Ext.P5

property list that the 'thondy' articles along with the sample CRL.A.No.2196 OF 2006

were produced before the Judicial First Class Magistrate's Court

only on 28.01.2004 which is four days after the alleged date of

occurrence. There is absolutely no explanation for this delay.

This Court has held in the decisions of this Court in Ravi v.

State of Kerala [2018 (5) KHC 352], that in the absence of

an explanation for the delay, even one day's delay is fatal and

would lead to an inference that the sample taken from the

'thondy' articles had not reached the chemical examiner in a

tamper proof condition. The same view has been taken by this

Court in Ramankutty v. Excise Inspector [2013 (3) KHC

308] and Balachandran v. State of Kerala [2020 (3) KHC

697] and in several other decisions. Apart from the aspect of

delay in production of the Thondy articles, it is seen that the

forwarding note which has been marked as Ext.P6 in the case is

seen signed by the Excise Inspector, Kuttippuram on

25.01.2004. However, it is seen that the Judicial First Class

Magistrate, Tirur has counter signed the document only on

23.02.2004, almost one month thereafter, and the sample had

been dispatched only on 23.03.2004. There is absolutely no

explanation for this delay in sending the sample for chemical

examination. In the above circumstances, I find that the CRL.A.No.2196 OF 2006

appellant is entitled to the benefit of doubt, since the

prosecution has failed to establish beyond reasonable doubt

that the sample which is said to have been allegedly collected

at the time of seizure of the 'thondy' articles from the accused

has reached the Chemical Examiner in tamper proof condition

and that it was the very same sample which was examined by

the chemical examiner.

5. In the light of the law laid down by this Court in the

above referred decisions, and on the facts of the case, the

judgment dated 03.11.2006 in SC.No.346/2005 on the file of

the Court of Additional Sessions Judge (Adhoc-I), Manjeri

Division is set aside. The accused is acquitted and set at liberty.

Bail bonds if any executed by the appellant or on his behalf are

canceled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE Sn