Velayudhan vs The State Of Kerala
2021 Latest Caselaw 19831 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                          CRL.A NO. 340 OF 2007
  AGAINST THE JUDGMENT IN SC 414/2006 OF ADDITIONAL SESSIONS COURT
                    (ADHOC)III, MANJERI, MALAPPURAM
APPELLANT/ACCUSED NO.2:

           VELAYUDHAN, MADAMPATH VEEDU, PUTHIYAKALAM, AMARAMBALAM,,
           NILAMBUR, MALAPPURAM DISTRICT.

           BY ADV SRI.BABU S. NAIR



RESPONDENT/STATE:

           THE STATE OF KERALA
           REP. BY THE EXCISE INSPECTOR, NILAMBUR EXCISE RANGE-,
           THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA,
           ERNAKULAM, KOCHI-31.

           BY SRI. RENJITH GEORGE PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 340 OF 2007                   2



                                   JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/2nd accused in S.C. No.414/2006 on the file of the

Additional Sessions Court, Fast Track Court No.III (Ad hoc), Manjeri, in a

prosecution for the offence under Section 8(1) of the Abkari Act.

2. Gist of the prosecution case is that, while the Excise Inspector of

Nilambur Range and party were on patrol duty at Amarambalam village, they

found the 1st accused handing over a plastic container to the 2 nd accused and it

is established that the 1st accused was selling arrack to the 2nd accused for a

sum of Rs.300/- .

3. Following investigation of the matter, a final report was filed before

the Judicial First Class Magistrate Court, Nilambur, alleging commission of

offence under Section 8(1) of the Abkari Act. The case was committed to the

Sessions Court, Manjeri, from where it was made over to the Assistant

Sessions Court, Manjeri and then transferred to the Additional Sessions Judge,

Fast Track Court No.-III (Ad hoc), Manjeri for trial and disposal. Charges

were framed by that court under Section 8(1) of the Abkari Act. On the

accused pleading not guilty, the prosecution led evidence by examining PWs 1

to 5 and marking Exts.P1 to P10 and identifying MO1. After closure of the

prosecution evidence, the accused were questioned under Section 313 Cr.P.C.

They denied all incriminating materials appearing against them. Though they

were called upon to adduce defence evidence, they did no do so, except

marking the thondy list as Ext.D1..

4. On a consideration of the evidence, the trial court came to the

conclusion that the appellant/2nd accused and the 1st accused had committed

the offence under Section 8(1) of the Abkari Act and therefore, convicted them

for the same. After hearing the appellant/2 nd accused and the 1st accused on the

question of sentence, they were sentenced to undergo rigorous imprisonment

for two years and to pay a fine of Rs.1,00,0000/- (Rupees one lakh only) and

in default of payment of fine to undergo simple imprisonment for another

three months. Set off as permissible in law was granted.

5. Learned counsel appearing for the appellant/2 nd accused would

contend that the appeal is liable to be allowed on a short point. He submits

that the alleged date of the incident is on 11.06.2004 and though the report of

chemical analysis was available in September of 2005, the final report was

filed in the matter only on 14.08.2006.

6. I have heard the learned Public Prosecutor also. The learned Public

Prosecutor submits that, in the facts and circumstances of this case, it cannot

be said that there is any inordinate delay in filing the final report.

7. This Court has, in Chandran v. State; 2016 (4) KLT 727, referring

to the judgment of this Court in Krishnan H. v. State; 2015(1) KHC 822,

considered the question as to whether the delay in completing the

investigation and filing a final report should be taken as a circumstance in

favour of an accused in Abkari offences, held as follows:-

"12. There is also delay in this case in fling the final report before the court.

When there was delay of eight months in conducting the investigation, the court in Krishnan H. V. State(2015 (2) KLT SN8 (C.No.11) = 2015 (1) KHC

822) held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 7.1.2006. The statement of witnesses was recorded on 8.1.2006 and 9.1.2006. Even then, the final report was filed before the court only on 7.11.2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).''

In the facts of the present case also, even after receipt of the chemical analysis

report, there is a delay of about 11 months in filing the final report. It is clear

from the law laid down by this Court in Chandran (supra) that such

unexplained delay in filing the final report is fatal to the prosecution case. In

the facts of the present case, the delay is substantial and unexplained. In that

view of the matter and without going into any other issue raised by the learned

counsel for the appellant/2nd accused, this appeal is liable to be allowed.

In the result, the appeal is allowed. The conviction and sentence

imposed on the appellant/2nd accused in S.C.No.414/2006 on the file of the

Additional Sessions Judge, Fast Track Court-III (Ad hoc), Manjeri is set aside

and the appellant/2nd accused is acquitted.

Sd/-

GOPINATH P., JUDGE ajt