Appukuttan vs State Of Kerala
2021 Latest Caselaw 9448 Ker

Crl.a.2188 of 2007                          1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE T.R.RAVI

       MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                        CRL.A.No.2188 OF 2007

       AGAINST THE JUDGMENT IN SC 126/2005 DATED 09-10-2007 OF
            ADDITIONAL SESSIONS COURT (ADHOC) I, KALPETTA


  APPELLANT/ACCUSED:

               APPUKUTTAN, S/O. CHOYI,
               AGED 51 YEARS
               OTTAKKANDATHIL HOUSE,
               NOOLPUZHA SOUTH, SULTHAN BATHERY.

               BY ADVS.
               SRI.V.RAJENDRAN (PERUMBAVOOR)
               SHRI.GEORGE VARGHESE KIZHAKKAMBALAM

  RESPONDENTS/COMPLAINANTS:

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

         2     EXCISE INSPECTOR,
               EXCISE RANGE OFFICE,
               SULTHAN BATHERY.

               BY PUBLIC PROSECUTOR SMT SYLAJA

       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
  22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2188 OF 2007                2




                              JUDGMENT

Dated this the 22nd day of March 2021

The accused in S.C.No.126/2005 on the file of the Additional

Sessions Judge (Adhoc) I, Kalpetta has filed this appeal being

aggrieved by the judgment dated 09.10.2007, whereby he has been

found guilty of offence under Section 55(a) of the Abkari Act and

sentenced to undergo rigorous imprisonment for a period of 2 years

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 17.05.2003 at

about 11.30 a.m., the accused was found in possession of 6 litres of

country made arrack, kept for sale. The detection was by the

Excise Inspector of Sulthan Bathery Excise Range. Before the court

below, the prosecution examined PW1 to PW5 and Exts.P1 to P7

were marked. The Detection Officer was not examined since he was

permanently residing abroad at the time of the trial. On the basis

of the evidence on record, the court below found the accused guilty

of offence and imposed 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

find that there are several infirmities in the prosecution case. It is

seen from the crime occurrence report, the mahazar and the arrest

memo that the said documents marked as Exts.P3,P2 and P1 were

produced before the Court on 27.5.2003, on which day the offence

is said to have occurred. However, the contraband articles which are

said to have been seized on that day and the property list, were not

produced along with the above said documents. Ext.P5, which is the

property list produced, is seen to have prepared on the date of

occurrence of the offence ie; on 27.05.2003, but is seen to have

been produced only on 28.05.2003 before the Court. It is seen from

the endorsement on Ext.P5 that Item 1 in the list was returned to

the Excise Inspector for safe custody on the very same day. The

prosecution has not explained the delay of one day in producing the

thondy articles before the court, particularly when Exts.P1 to P3

were produced on the very same day of occurrence of the offence.

In the absence of explanation even one day's delay is fatal for the

prosecution. [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. The forwarding note produced as Ext.P6 is seen to have

been prepared on 27.05.2003 and it has been produced before the

Court on 28.05.2003. Even though the document which is produced

is a carbon copy, the name of the Constable with whom the sample

is to be sent is seen to have been written in ink on a later day. The

Magistrate has counter signed the forwarding note but there is no

date written below the initials so as to indicate the date of despatch

of the sample to the Chemical Examiner. The report of the

Chemical Examiner which has been produced as Ext.P7 would show

that the sample was forwarded along with a reference letter dated

'NIL' of the Judicial First Class Magistrate Court I, Sulthan Bathery,

but the sample is seen to have been received by the Examiner only

on 4.6.2003. There is absolutely nothing in evidence to explain the

delay of seven days between the day on which the Forwarding Note

was produced before Court and the day on which the sample

reached the Examiner, thus leaving a doubt regarding the safe

custody of the sample between the said dates. The requirement of

the writing of the date below the initial of the Magistrate, who

countersigned the Forwarding Note has been categorically stated by

this Court in several decisions. [See Kumaran v. State of Kerala

(2016 (4) KLT 718)].

6. In the above circumstances, the appellant is entitled to

succeed. The judgment dated 09.10.2007 in S.C.No.126/2005 on

the file of the Additional Sessions Court (Adhoc) I, Kalpetta 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. On

16.10.2006, this Court had directed the appellant to deposit a sum

of ₹15,000/- out of the fine, before the trial court. The appellant is

entitled to refund of the said amount, for which he may approach

the trial court with proper application.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

dsn