Velayudhan vs State Of Kerala
2021 Latest Caselaw 18339 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                          CRL.A NO. 2728 OF 2008
 AGAINST THE JUDGMENT DATED 20-10-2008 IN SC 384/2007 OF ADDITIONAL
           SESSIONS COURT (ADHOC)-II, MANJERI, MALAPPURAM


APPELLANT/ACCUSED:

           VELAYUDHAN
           S/O SUBRAHAMANIAN, PARAYIL HOUSE,
           VENGARA AMSOM, VALIYORA DESOM, TIRURANGADI TALUK.

           BY ADVS.
           SRI.P.VIJAYA BHANU
           SRI.P.VENUGOPAL 108692



RESPONDENT/COMPLAINANT:

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


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No.2728/2008                   -2-

                                  JUDGMENT

This appeal has been filed challenging conviction and sentence imposed on the

appellant/accused in S.C No.384/2007 on the file of Additional District and Sessions

Judge (ad-hoc)-II, Manjeri for an offence under Section 8 (2) of the Abkari Act. The

gist of the prosecution case is that the appellant/accused was found in possession of 5

litres of arrack on 09-02-2007 at about 4.15 p.m, in violation of the provisions of the

Abkari Act. Following investigation of the case the final report was filed before the

Judicial First Class Magistrate Court, Parappanangadi. Following the case being

committed to the court of session, charges were framed by the Assistant Sessions

Court, Tirur under Section 8 (2) of the Abkari Act. On the accused pleading not guilty,

trial was conducted in the court of Additional District and Sessions Court (ad-hoc)-II,

Manjeri. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P8 and

identified and marked as M.O.1 which was the plastic can in which the arrack was

being carried.

2. The learned counsel for the appellant has raised 3 contentions. The

primary contention is that the case was detected on 09-02-2007. The accused was

arrested and the contraband articles was produced before the Judicial First Class

Magistrate Court, Nilambur (who was not the jurisdictional magistrate) on 10-02-

2007. According to the evidence tendered by PW1, this was on account of the fact that

the jurisdictional Magistrate namely Judicial First Class Magistrate, Parappanangadi

was on leave and the charge was with the Judicial First Class Magistrate, Nilambur. It

was also the evidence of PW1 that the contraband articles were returned by the

J.F.C.M, Nilambur and it was kept in his safe custody till 14-02-2007 on which date it

was produced before the J.F.C.M, Parappanangadi. He also submits that there is a

material contradiction in the evidence tendered by PWs 1 & 2 in as much as they have

given different versions regarding the identity of the person who did sampling and

affixed seal on the samples. He also states that the forwarding note (Ext.P5) does not

contain the name of person who took the samples to the court and to the laboratory for

the purpose of analysis.

3. The evidence in this case will show that while PW1 has a case that the

JFCM, Parappanangadi was on leave and charge was given to the J.F.C.M, Nilambur

on the relevant date (9/10-02-2007), there is no evidence to establish that fact. More

pertinently there is absolutely no evidence to show that the J.F.C.M, Nilambur before

whom the contraband was produced on 10-02-2007 had returned the contraband to

PW1 for production before the JFCM, Parappanangadi and further there is no

satisfactory explanation as to why the sample was produced before the JFCM,

Parappanangadi only on 14-02-2007. Though he says that as per the information then

available with him, the JFCM, Parappanangadi was available only on 14-02-2007,

there is no independent evidence to prove that the contraband article was indeed

returned to PW1 for safe keeping by the J.F.C.M, Nilambur. There is no proof of the

fact that the JFCM, Parappanangadi was not available till 14-02-2007. The

unexplained delay is fatal to the prosecution case. [see Ravi v. State of Kerala;

2011 (3) KHC 121]. Taking into consideration the law laid down by this court in

Ravi (supra) it clear that there must have been credible evidence regarding the fact

that the jurisdictional magistrate was on leave on 9/10-02-2007 that the Judicial First

Class Magistrate holding charge had returned the contraband to the safe custody of

PW1 and further that the jurisdictional magistrate was not available till 14-02-2007.

In that view of the matter and without going into any of the other contentions

raised by learned counsel for the appellant/accused I am of the view that this appeal is

liable to be allowed. Accordingly this appeal is allowed. The conviction and sentence

imposed on the appellant/accused in S.C No.384/2007 on the file of Additional

District and Sessions Judge (ad-hoc)-II, Manjeri is set aside. The appellant/accused

will stand acquitted.

Sd/-

GOPINATH P.

JUDGE

AMG