Ramachandran vs State- S.I. Of Police
2021 Latest Caselaw 9652 Ker

Crl.A.1482 of 2007                1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE T.R.RAVI

      TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                        CRL.A.No.1482 OF 2007

  AGAINST THE JUDGMENT IN SC 183/2005 OF ADDITIONAL SESSIONS COURT
                        (ADHOC)-II, KALPETTA


  APPELLANTS/ACCUSED:

         1     RAMACHANDRAN,
               S/O. SAHADEVAN, PALACKAPARAMBIL HOUSE,
               LUCKY HILL, MOOPAINADU,
               WAYANAD DISTRICT.

         2     SMITHA, W/O.RAMACHANDRAN
               PALACKAPARAMBIL HOUSE,
               LUCKY HILL, MOOPAINADU,
               WAYANAD DISTRICT.

               BY ADV. SRI.GEORGE MATHEWS
               ADV. SRI PRANOY K.KOTTARAM

  RESPONDENT/COMPLAINANT:

               STATE- S.I. OF POLICE, MEPPADI,
               REP.BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM.

               BY PUBLIC PROSECUTOR SMT. SYLAJA

       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
  23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1482 OF 2007                 2



                               JUDGMENT

Dated this the 23rd day of March 2021

The accused in S.C.No.183/2005 on the file of the Additional

Sessions Court (Adhoc) II, Kalpetta have filed this appeal being

aggrieved by the judgment dated 02.08.2007, whereby they have

been found guilty of offence under Sections 55(a) and 55(g) of the

Abkari Act and the 1st accused is sentenced to undergo rigorous

imprisonment for a period of 3 years each and to pay a fine of

₹1,00,000/- and in default of payment of fine to undergo rigorous

imprisonment for a period of 6 months and the 2 nd accused is

sentenced to undergo simple imprisonment for 1 year and to pay a

fine of ₹1,00,000/- and in default of payment of fine to undergo

simple imprisonment for a period of 3 months.

2. The case of the prosecution is that on 28.07.2003 at

about 9.45 a.m., the accused were found distilling arrack and in

possession of illicit arrack intended for sale, at their residence. The

detection was by the Sub Inspector of Police, Meppady Police

Station who was examined as PW5, who stated that he had

received information regarding the commission of the offence.

According to him, on inspecting the kitchen of the house of the

accused, he found the 1st accused sitting in from of the oven in the

kitchen, and along with the 2 nd accused was involved in the process

of distilling arrack, using the utensils produced as MO4 (series). He

has admitted that after collecting sample of the wash as MO2, the

remaining wash was destroyed at the scene of occurrence. Before

the court below, the prosecution examined PW1 to PW7 and Exts.P1

to P11 were marked. MO1 to MO5 were identified and marked. On

the basis of the evidence on record, the court below found the

accused guilty of offence and imposed on them the sentence

referred above.

3. Heard Sri Pranoy K.Kottaram on behalf of the appellants

and Smt.Sylaja, Public Prosecutor, on behalf of the State.

4. The counsel for the appellant contended that the offence

has taken place after the amendment of the Abkari Act and

introduction of Section 53A, which prescribes the procedure to be

followed while disposing of the contraband articles. It is his

contention that the prosecution has not complied with the

requirements of Section 53A and that the accused are entitled to be

acquitted on that sole reason. I find considerable force in the

contention raised by the counsel for the appellant.

5. This court has held in Balakrishna Rai v. State of

Kerala reported in [2020(3)KHC 286] that when the procedure

laid down in Section 53A is not adopted and strictly followed and

when the seized contraband has been destroyed or otherwise

disposed of, the very seizure of the contraband becomes doubtful

and that the accused will in such circumstances be entitled to take

the benefit of the doubt. Admittedly, in the case on hand, the wash

was destroyed at the scene of occurrence and the arrack that is

said to have been seized is intrinsically linked to the distilling

process that is said to have been taken place at the time of

inspection. Apart from the fact that Section 53A has not been

complied with, I find there are several other infirmities in the

prosecution case. It is seen from Ext.P10 report of the Chemical

Examiner, that the wash was not even sent for chemical analysis. A

perusal of Ext.P10 shows that only one sealed bottle containing a

liquid alleged to be arrack has been sent for analysis. On going

through Ext.P9 forwarding note, it is seen that the document does

not mention the name of the Abkari Officer with whom the sample

is sent for analysis. The Magistrate has not countersigned the

document and no date of despatch is seen on the note. The

covering letter from the Magistrate shows a date '7.8.2003' but as

per Ext.P10 report the sample was received only on 12.8.2003. The

forwarding note does not even request for sending the wash for

analysis. The above infirmities are also fatal for the prosecution.

[See Jayakumar v. State of Kerala (2018 KHC 3165), and Kumaran

v. State of Kerala (2016 (4) KLT 718)].

6. In the above circumstances, the appellants are entitled

to succeed. The judgment dated 02.08.2007 in S.C.No.183/2005

on the file of the Additional Sessions Court (Adhoc) II, Kalpetta is

set aside. The appellants are acquitted and set at liberty. The bail

bonds, if any, executed by the appellants or on their behalf are

cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

dsn