Shaji, S/O.Madhavan vs State Of Kerala
2022 Latest Caselaw 9751 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                     CRL.A NO. 1899 OF 2007
  AGAINST THE JUDGMENT IN SC 92/2006 OF ADDITIONAL SESSIONS
                COURT (ADHOC)-II, THODUPUZHA
APPELLANT/ACCUSED:

          SHAJI, S/O.MADHAVAN,
          MUDAVUMMATTATHIL HOUSE,
          KODIKULAMKARA,, KODIKULAM VILLAGE,
          THODUPUZHA.
          BY ADVS.
          C.K.VIDYASAGAR
          T.I.ABDUL SALAM

RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REP. BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA.
          BY ADV.RAJEEV JYOTISH GEORGE, PUBLIC PROSECUTOR


    THIS CRIMINAL APPEAL HAVING COME UP FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 CRA No.1899/2008

                                 2




                  P.V.KUNHIKRISHNAN, J.
                   --------------------------------
             Criminal Appeal No.1899 of 2008
            ----------------------------------------------
          Dated this the 26th day of August, 2022


                          JUDGMENT

The above appeal is filed against the conviction and

sentence imposed on the appellant as per judgment dated

13.09.2007 in S.C.No.92/2006 on the file of the Additional

Sessions Judge (Adhoc)-II, Thodupuzha. The case was charge-

sheeted alleging offences punishable under Sections 15(c)

and 55(a) & (i) of the Abkari Act.

2. The prosecution case is that on 27.03.2004, at

about 7.30 pm, the appellant was found in possession of 100

ml of liquor in a bottle. Thereafter 8 bottles were seized from

the house of PW-6. Hence it is alleged that the appellant

committed the offence.

3. To substantiate the case, the prosecution examined

PW1 to PW6. Exts.P1 to P8 are the exhibits marked on the side

of the prosecution. MO1 to MO6 are the material objects. After CRA No.1899/2008

going through the evidence and the documents, the trial court

found that the appellant committed the offence under Section

55(i) of the Abkari Act. He was sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.1,00,000/-.

In default of payment of fine, the appellant was sentenced to

undergo rigorous imprisonment for three months. Aggrieved

by the conviction and sentence, this Criminal Appeal is filed.

4. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

5. The learned counsel for the appellant submitted

that there is a long delay in producing the contraband article

before the court and there is no valid explanation for the

same. The learned counsel submitted that, that itself is

enough for acquitting the accused. There is no guarantee that

the seized article reached the hands of the analyst.

6. The Public Prosecutor on the other hand submitted

that, there is oral and documentary evidence to prove the case

and there is nothing to interfere with the conviction and

sentence imposed on the appellant.

7. The point to be decided in this case is whether the CRA No.1899/2008

appellant committed the offence.

8. This Court considered the contentions of the

appellant and the Public Prosecutor. Admittedly there is a

delay of 20 days in producing the contraband before the court.

There is no explanation for the same. It is the duty of the

prosecution to prove all the links starting from seizure of the

contraband till it reaches the hands of the analyst. The

property is to be produced before the court immediately after

seizure. Since there is a long delay in producing the article,

that is vital to the prosecution.

9. The delay in producing the article is fatal to the

prosecution. This point is also considered by this Court in

Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v.

State-Sub Inspector of Police, Meppadi (2018(5) KHC

352) and Vikraman v. State of Kerala (2018(1) KLT 822).

Relevant portion of the judgment in Ravi's case (supra) is

extracted hereunder:

"8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR CRA No.1899/2008

2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt.

9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note."

10. In the light of the above discussion, I think the

appellant is entitled the benefit of doubt.

Therefore, the Criminal appeal is allowed in the following

manner:

i. The conviction and sentence imposed on the

appellant as per judgment dated 13.09.2007 in

S.C.No.92/2006 on the file of the Additional CRA No.1899/2008

Sessions Judge (Adhoc)-II, Thodupuzha, are set

aside and the appellant is set at liberty.

ii. The bail bond, if any, executed by the appellant

is cancelled.

sd/-

                                         P.V.KUNHIKRISHNAN
JV                                              JUDGE