P.A.Vijayan vs State Of Kerala
2021 Latest Caselaw 9705 Ker

             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.347 OF 2008

  AGAINST THE JUDGMENT IN SC.NO.286/2005 DATED 23-01-2008 OF THE
       COURT OF ADDITIONAL SESSIONS JUDGE ADHOC-II, KALPETTA


APPELLANT/ACCUSED:

             P.A.VIJAYAN
             S/O.ACHUTHAN,
             PULLAKKUDYHOUSE,
             NELLIKKARA DESOM,
             POOTHADY VILLAGE,
             SULTHAN BATHERY TALUK.

             BY ADV. SRI.A.C.DEVY

RESPONDENT/STATE:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM, KOCHI-31.

             BY SMT. SYLAJA, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.347 OF 2008

                                2

                        JUDGMENT

Dated this the 23rd day of March 2021

The accused in SC.No.286/2005 on the file of the Court of

Additional Sessions Judge (Adhoc) -II, Kalpetta has filed this

appeal, being aggrieved by the judgment dated 23.01.2008

whereby the appellant was found guilty of offences under section

8(1) and 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 11.11.2003 at 4.00

p.m, the accused was found in possession of 10 litres of arrack at

the premises of his residence at Kuruma colony in Nellikkara. It

is stated that the appellant was arrested, the contraband was

seized, the sample was taken and sealed and was produced

before the Court. On the basis of the evidence on record, the

Court below found the appellant guilty of the offence and

imposed the sentence referred above.

3. Heard Shri. A.C.Devy, learned counsel on behalf of the

appellant and Smt.Shylaja, learned Public Prosecutor on behalf CRL.A.No.347 OF 2008

of the State.

4. The counsel for the appellant submits that there is delay

in producing the contraband articles before the court and the

said delay has not been explained by the prosecution in any

manner. It is submitted that for that reason alone, the appeal is

liable to be allowed.

5. I find that the contention of the appellant is justified. On

going through the records, it is seen that even though the

offence was detected on 11.11.2003 and the contraband was

seized, the same was produced before the Court only on

13.11.2003. There is no explanation forth coming for the said

delay, in the evidence of the witness. As such, it is not clear as to

how and where the contraband articles were kept in safe custody

prior to the production of the same before the Court. This Court

has held in Ravi V. State of Kerala [2018 (5) KHC 352] that the

Investigating Officer has to explain the delay in production of the

contraband articles before the court and in the absence of such

explanation, the delay of even one day is fatal. Similar view has

been expressed in the judgment in Ramankutty V. Excise

Inspector [2013 (3) KHC 308] and in Balachandran V. State of CRL.A.No.347 OF 2008

Kerala [2020 (3) KHC 697]. Hence the appellant is entitled to

succeed in this appeal. Apart from that, it is seen that the

forwarding note which has been produced as Ext.P7 does not

bear a date along with the counter signature of the Magistrate.

The name of the officer with whom the sample is to be sent is

seen to have been added after the forwarding note was

prepared. There is a seal showing a dispatch date as 20.11.2003.

The chemical analysis report which is produced as Ext.P4 shows

that the sample was received on 20.11.2003 along with a

reference letter dated 19.11.2003 which is not seen produced

and marked in evidence. In the said circumstances, there is

absolutely no evidence regarding the manner in which the

sample was kept under safe custody between the date of

production and the date of dispatch and it was not clear whether

the sample has changed hands in between.

6. In the said circumstances, the judgment dated 23.01.2008 in

SC.No.286/2005 on the file of the Court of Additional Sessions

Judge (Adhoc) -II, Kalpetta is set aside. The appellant is

acquitted and set at liberty. Bail bonds if any executed by the

appellant or on his behalf are canceled. It is seen from the order CRL.A.No.347 OF 2008

dated 18.02.2008 that the at the time of admission, the appellant

was directed to deposit a sum of Rs.7,000/- before the Court

below. The appellant is entitled to get refund of the said amount

on filing proper application before the Court below. The appeal

stands allowed.

Sd/-

T.R.RAVI

JUDGE Sn