Prakasan vs State Of Kerala
2021 Latest Caselaw 9034 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                      CRL.A.No.1420 OF 2006

    AGAINST THE JUDGMENT DATED 24.06.2006 IN SC.NO.879/2003 OF
     ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-I, ALAPPUZHA

CP.NO 106/2003 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, HARIPAD


APPELLANT/ACCUSED:

             PRAKASAN
             S/O.LAKSHMANAN,
             AJAYA BHAVANAM VEEDU,
             WARD NO.VII,
             MUTHUKULAM THEKKU MURI,
             MUTHUKULAM VILLAGE, ALAPPUZHA.

             BY ADVS.
             SRI.S.SANAL KUMAR
             SMT.BHAVANA VELAYUDHAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SMT. SYLAJA, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1420 OF 2006

                                 2



                         JUDGMENT

Dated this the 18th day of March 2021

The accused in SC.No.879/2003 on the file of the Additional

Sessions Judge, Fast Track Court -I, Alappuzha has filed this

appeal challenging the judgment dated 24.06.2006 whereby the

he has been found guilty of offence under Sections 8(1) and 8(2)

of the Abkari Act and has been sentenced to undergo rigorous

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

default of payment of fine, to undergo simple imprisonment for a

further period of six months.

2. The case of the prosecution is that on 24.01.2002 at

about 9.30 a.m, the Excise party led by PW1 the Excise Range

Inspector, Kayamkulam who were on patrol duty, found the

accused in possession of two litres of spirit in a can of five litre

capacity. It is stated he was arrested and the contraband articles

were seized and produced before the Court. Before the court

below, PW1 to PW5 were examined on the side of the

prosecution and Exts.P1 to P5 were marked. On the basis of the

evidence on record, the Court below found the appellant guilty of

the offences and imposed the sentence referred above. CRL.A.No.1420 OF 2006

3. Even though several grounds have been raised in the

appeal memorandum, on a perusal of the records, I find that

there are several discrepancies in the manner in which the

prosecution case has been proceeded with. Firstly, even though

it is stated that the accused was arrested on the spot, no arrest

memo has been produced and marked before the Court below.

Secondly, even though a property list is said to have been

submitted on 24.01.2002, the document does not bear any date.

Thirdly, the requisition letter requesting for sending the sample

for chemical examination is seen to have been submitted much

later. The requisition form does not contain any date. Neither the

Excise Inspector who prepared it, nor the Magistrate who had

initialled has put a date to indicate the day on which it reached

the Court. Fourthly, the requisition letter does not show the

name of the Excise Guard with whom the sample is to be

forwarded to the Chemical Examiner. Fifthly, it is seen that the

covering letter which is sent along with the requisition letter,

addressed by the Judicial First Class Magistrate's Court, Haripad

bears the date as 28.05.2002 indicating that the sample was sent

only on 28.05.2002 for chemical examination. The said letter also CRL.A.No.1420 OF 2006

does not show the name of the person through whom it is being

sent for chemical examination. All the above factors both

individually as well as collectively are sufficient for acquittal of

the accused, as has been held by this Court in several decisions.

[See Kumaran v. State of Kerala (2016(4) KLT 718),

Jayakumar v. State of Kerala (2018 KHC 3165) and

Ramankutty v. Excise Inspector (2013(3)KHC 308)].

4. In the said circumstances, the judgment dated

24.06.2006 in SC.No.879/2003 on the file of the Additional

Sessions Judge, Fast Track Court -I, Alappuzha is set aside. The

accused is acquitted and set at liberty. Bail bonds if any executed

by the appellant or on his behalf are cancelled. An amount of

Rs.10,000/- which had been directed to be deposited before the

Court below by order dated 25.07.2006 of this Court, if

deposited, shall be returned to the appellant on proper

application.

The appeal stands allowed.

Sd/-

                                             T.R.RAVI
Sn                                            JUDGE