Kerala High Court
Mohanan, S/O.Madhavan vs State Of Kerala on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
CRL.A NO. 296 OF 2008
AGAINST THEJUDGMENT IN SC 48/2007 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA
CP 84/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI
APPELLANT/ACCUSED:
MOHANAN, S/O.MADHAVAN
THATTAMKUNNEL HOUSE, KEERITHODU KARA,, KANJIKUZHY
VILLAGE.
BY ADVS.
SRI.C.M.TOMY
SRI.MATHEW SKARIA
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
OTHER PRESENT:
SRI SANAL P RAJ,PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.296/2008
-:2:-
J U D G M E N T
Dated this the 30th day of November, 2021
This appeal is filed by the accused in S.C.No.48/2007 on the
file of the Additional Sessions Court (Adhoc-II), Thodupuzha
against the judgment of conviction and sentence under Section
55(b) of the Abkari Act.
2. The prosecution case in short is that in the house of
the accused at Periyarvalley bhagam in Keerithodu Kara, accused
was found distilling arrack and was also found keeping 1½ litres
of distilled arrack and wash on 13/10/2005 at 6.00 p.m in
contravention of the Abkari Act and Rules and thereby committed
the offence.
3. On receipt of summons, the accused appeared at the
court below. After hearing both sides, the court below framed
charge under Sections 55(b), (g), (h) and 8(2) of the Abkari Act.
The charge was read over and explained to the accused who
pleaded not guilty. On the side of the prosecution, PWs1 to 6
were examined and Exts. P1 to P9 were marked. MO1 to MO8
were identified. No defence evidence was adduced. On
Crl.Appeal No.296/2008
appreciation of the evidence, the court below found the accused
guilty under Section 55(b) of the Abkari Act and he was convicted
for the said offence. The court below sentenced him to undergo
rigorous imprisonment for one year and to pay a fine of
`1,00,000/-, in default to undergo rigorous imprisonment for three
months. The said conviction and sentence are under challenge in
this appeal.
4. I have heard Sri. C.M.Tomy, the learned counsel for the
appellant and Sri. Sanal P. Raj, the learned Public Prosecutor.
5. The learned counsel for the appellant impeached the
finding of guilt passed by the court below on two grounds.
(1) The mahazar does not contain seal or its description.
(2) There is a delay of 2 days in producing the seized contraband
substance as well as the sample drawn from it at the court.
6. The learned Public Prosecutor, on the other hand,
supported the findings and verdict of the court below and
submitted that the prosecution has succeeded in proving the
case beyond reasonable doubt.
7. The first point canvassed by the learned counsel is
regarding the absence of sample seal in the mahazar. This Court
in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057)
Crl.Appeal No.296/2008
has held that the specimen seal shall be provided in the seizure
mahazar and also in the forwarding note, so as to enable the
court to satisfy the genuineness of the sample produced in the
court. It was also observed in the said judgment that the nature
of the seal used shall be mentioned in the seizure mahazar. A
perusal of Ext.P1 mahazar would show that it does not contain
the sample seal or the description of the seal used.
8. The second contention put forward by the learned
counsel for the appellant is about the delay in producing the
samples of contraband substance at the court below. It is settled
that the unexplained delay in producing the contraband
substance and the samples drawn from it at the court is fatal to
the prosecution case. The Apex Court in State of Uttar Pradesh
v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when
there is delay in producing samples of contraband substance in
Court and when evidence is that they were kept in police station,
prosecution has to adduce evidence to show as to how and in
what condition the same were preserved at the police station. A
Division Bench of this Court in Ravi v. State of Kerala [2011 (3)
KLT 353] has held that even though law does not mandate
production of seized articles forthwith before the Court and it
Crl.Appeal No.296/2008
enjoins only reporting the seizure forthwith to the Court, the
production of the seized articles shall take place without
unnecessary delay and if there is delay, it should be satisfactorily
explained. A Single Bench of this Court in Ramankutty v. Excise
Inspector [2013 (3) KHC 308] has held that in the absence of
proper explanation for the delay, even one day's delay is fatal.
Similar view has been expressed by another Single Bench of this
Court in Ravi v. State [2018 (4) KLT Online 2056]. Relying on the
Division Bench's decision in Ravi (supra), recently, another Single
Bench of this Court in Anilkumar v. State of Kerala (2020 (4)
KLT 34) has also took the view that the delay in producing the
samples of contraband substance in Court in the absence of
satisfactory explanation is fatal.
9. Coming to the facts of the case, the detection was on
13/10/2005. Ext.P5 property list would show that the seized
contraband article and the sample drawn from it were produced
only on 15/10/2005. Thus, there is a delay of two days. This has
not been explained at all. There was absolutely no evidence to
show as to how and in what condition the contraband articles
were kept. When there is delay, however short it may be, in
producing the seized contraband substance and the sample
Crl.Appeal No.296/2008
drawn from it at the Court, the prosecution has not only to
explain the delay satisfactorily, but also to prove how and in what
condition the same were preserved during the interregnum
period. The prosecution failed to satisfy this twin conditions.
10. The aforesaid vital aspects were not taken into
consideration by the court below while appreciating the
prosecution case. For the reasons stated above, I am of the view
that the conviction and sentence passed by the court below
suffer from illegality and it cannot be sustained.
In the result, the criminal appeal stands allowed. The
conviction and sentence passed by the court below vide the
impugned judgment are set aside. The appellant is found not
guilty of the offence charged against him and accordingly he is
acquitted. His bail bond is cancelled.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
