Kerala High Court
Balan vs State Of Kerala on 23 March, 2021
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.2327 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 480/2004 DATED 20-10-2006 OF
ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC)-II,
KOZHIKODE
APPELLANT/ACCUSED:
BALAN
AGED 53 YEARS, S/O.VELUMBIRA,
KONANKOTTUMMAL HOUSE,
KOKKALLUR AMSOM PANAYI DESOM,
KOYILANDY TALUK,
KOZHIKODE DISTRICT.
BY ADV. SRI.SANTHARAM.P
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY 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.2327 OF 2006
2
JUDGMENT
Dated this the 23rd day of March 2021
The accused in S.C.No.480/2004 on the file of the
Additional District and Sessions Court, Fast Track
(Adhoc) II, Kozhikode has filed this appeal being
aggrieved by the judgment dated 20.10.2006, whereby he
has been found guilty of offence under Section 55(g) of
the Abkari Act and sentenced to undergo rigorous
imprisonment for two years and to pay a fine of
₹1,00,000/- and in default of payment of fine, to
undergo simple imprisonment for a period of 6 months.
2. The case of the prosecution is that on
16.07.2002, PW1, the Preventive Officer of Kozhikode
Excise Enforcement and Anti Narcotic Special Squad and
his party, while on patrol duty, found the accused at
about 3.15 p.m., in possession of a green plastic pot
containing 15 litres of wash. The accused was
arrested, the contraband was seized and after taking
the sample of the wash, the remaining wash is said to
have been destroyed. The articles were produced before
CRL.A.No.2327 OF 2006
the court on the next day, as can be seen from Ext.P7
thondi list. On the side of the prosecution, PW1 to PW6
were examined, Exts.P1 to P9 were marked and MO1 was
identified. DW1 was examined on the side of the
defence. On the basis of the evidence on record, the
court below found the appellant guilty of the offence
and imposed on him the sentence referred above.
3. Heard Sri.P.Santharam, learned counsel on
behalf of the appellant and Smt.Sylaja, learned Public
Prosecutor on behalf of the State.
4. The counsel for the appellant contended that
there is delay in completing the investigation and
laying the charge, which has not been explained in any
manner. It is also contended that there is one day's
delay in producing the contraband before the court and
that the forwarding note produced as Ext.P8 does not
contain any necessary details. On the question of
delay in conduct of the investigation, the counsel
relied on the judgment of this Court in Krishnan H. V.
State reported in (2015 (1) KHC 822). On going through
CRL.A.No.2327 OF 2006
the records, I find that the offence is said to have
occurred on 16.07.2002 and the report of the Chemical
Analyst was received only on 04.09.2003. Thereafter
the complaint has been filed on 04.02.2004, after 5
months. I am of the opinion that the above said period
cannot be treated as an unreasonable delay and I am not
inclined to accept the contention of the counsel on
that count. At the same time, on going through Ext.P8
forwarding note, I find that the said document is not
seen dated. The Excise Inspector has not put the date
on which it was prepared. The Magistrate who was
counter signed has also not written the date on which
it was received. The document is seen prepared in blue
carbon. At the same time, the name of the Excise Guard
is seen to have been entered in ink, later. Ext.P8
does not clearly show as to when it was received in
court and when it was signed by the Magistrate and as
to the date on which the sample was actually sent to
the Chemical Examiner. Ext.P9, which is the report of
the Chemical Examiner shows that the sample was
CRL.A.No.2327 OF 2006
received along with a covering letter dated 17.07.2002
and that it was actually received only on 25.07.2002.
No witness has been examined to explain the delay of 8
days from the date of the covering letter of the
Judicial First Class Magistrate and the absence of
details regarding the actual despatch of the sample in
the forwarding note are fatal for the prosecution. In
the light of the law declared by this Court and on the
facts of this case, the appellant is entitled to
succeed.
In the result, the judgment dated 20.10.2006 in
S.C.No.480/2004 on the file of the Additional District
& Sessions Court, Fast Track (Adhoc) II, Kozhikode 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.
This appeal stands allowed.
Sd/-
T.R.RAVI, JUDGE
Pn
