Kerala High Court
Raghavan vs State Of Ekerala on 3 June, 2022
CRL.A NO. 1504 OF 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
CRL.A NO. 1504 OF 2006
AGAINST THE ORDER/JUDGMENT IN CP 43/2003 OF JUDL. MAGISTRATE OF
FIRST CLASS, KOTHAMANGALAM
SC 278/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
APPELLANT/S:
RAGHAVAN
S/O.PAILY,PALAKKOTTIL VEEDU, NEAR ALLUNGAL MUSLIM,
MOSQUE, PIRAKKUNNAM KARA, NERIYAMANGALAM.
BY ADV SRI.S.SREEKUMAR
RESPONDENT/S:
1 STATE OF EKERALA
REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
2 ASHRUF, S/O. ALIYAR
PATTIKKAMATTATHIL VEEDU, PIRAKKUNNAM KARA,
NERIYAMANGALAM.
BY ADVS.
PUBLIC PROSECUTOR
SRI.R.BINDU SASTHAMANGALAM
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1504 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No.1504 of 2006
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Dated this the 3rd day of June, 2022
JUDGMENT
The appellant is the 1st accused in Sessions Case No.
478/2002 on the file of the Addl.Sessions Judge, (Adhoc-2),
Ernakulam. This is a case chargesheeted against the appellant
and another alleging offence punishable under Secs. 8(1) r/w
8(2) of the Abkari Act.
2. The prosecution case is that on 18.4.2003 at about
11.10 pm, the accused was found transporting illicit arrack in a
10 ltr. Plastic can in an autorikshaw bearing registration
No.KL-7 U/4781 driven by the 2nd accused in violation of the
provisions of the Abkari Act at Oonnukal. The accused are
therefore alleged to have committed the offence.
3. To substantiate the case, the prosecution examined
PW1 to PW4. Exts.P1 to P12 are the exhibits. MO1 is the
material object marked on the side of the prosecution. No
defence evidence was adduced by the prosecution. After going
through the evidence and the documents, the trial court found
that the 1st accused is guilty under Secs.8(1) r/w 8(2) of the
Abkari Act. The 2nd accused was acquitted. The 1st accused was
sentenced to undergo rigorous imprisonment for a period of
one year and to pay a fine of Rs.1,00,000/- (Rupees One Lakh
only) and in default to pay the fine, he is directed to undergo
simple imprisonment for a further period of six months under
Secs.8(1) r/w 8(2) of the Abkari Act. It is also ordered that the
accused is entitled set off for the period of detention from
18.4.2003 to 3.5.2003. Aggrieved by the conviction and
sentence, this appeal is filed.
4. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
5. The counsel for the appellant submitted that even if
the entire allegations are accepted, the prosecution is not able
to prove the case. The counsel submitted that the vehicle was
driven by the 2nd accused and it is the case of the prosecution
that when the police party came, both accused tried to ran
away. The 2nd accused was already acquitted by the trial court.
The counsel submitted that there is no other evidence to
connect the accused with the contraband articles. The counsel
also submitted that the prosecution miserably failed to prove
that the seized articles reached in the hands of the Analyst.
Therefore, the accused is entitled the benefit of doubt. The
learned Public Prosecutor submitted that there is nothing to
interfere with the conviction and sentence imposed on the
appellant. The Public Prosecutor submitted that the oral
evidence coupled with the documentary evidence will prove the
offence and the appellant is guilty under Sec.8(1) of the Abkari
Act. The Public Prosecutor takes me through the evidence
available in this case along with the documents.
6. This Court considered the contentions of the
appellant and the Prosecutor. The point for consideration in
this appeal is whether the appellant committed the offence
under Secs.8(1) and (2) of the Abkari Act based on the oral
evidence of PW1 to PW4 coupled with the documentary
evidence of Exts.P1 to P12.
7. This Court perused the evidence and documents
available in this case. The prosecution case is that on
18.4.2003, the contraband was seized from an autorickshaw.
Ext.P3 is the seizure mahazar. Ext.P9 is the property list. As
per the property list, the properties were reached the Court on
19.4.2003. Thereafter, the sample was forwarded for chemical
analysis based on Ext.P10 forwarding note. Ext.P12 is the
analyst report. I perused Ext.P10 forwarding note. A perusal of
Exts.P10 and P12 will show that the sample was sent to the
Analyst through one Police Constable No.7116. The Police
Constable, who took the sample to the Analyst is not examined
in this case. It is a settled position that the prosecution should
prove all the links starting from seizure of the contraband till it
reaches in the hands of the Analyst. PW1 is the alleged
independent witness who attested the mahazar. He was turned
hostile. The seizure mahazar in which PW1 was alleged to be
signed was not even put to the witness by the prosecution.
PW2 is the Police Constable. PW2 deposed that he was a
witness to the search and seizure including the arrest of the
appellant. PW2 has no case that he produced the sample
before the Analyst. PW3 is the detecting officer. He also
deposed about the search, seizure and arrest of the accused.
PW3 also has no case about the entrustment of the sample to
the Analyst. PW4 is the officer who conducted subsequent
investigation after the preliminary investigation conducted by
PW3. PW4 also has no case about the entrustment of the
sample to the Analyst by the Police Constable bearing No.7116
which is mentioned in Ext.P12 analyst report.
8. It is a settled position that in abkari cases the
prosecution has to prove all the links starting from seizure of
the contraband till it reaches in the hands of the Analyst. Here
is a case where the prosecution miserably failed to prove all
the links starting from seizure till it reaches in the hands of
the Analyst. For that reason itself, the accused is entitled the
benefit of doubt.
9. Moreover, the final report was submitted before the
Court only on 04.07.2003 whereas the seizure was on
18.04.2003. In Abkari cases, after search, seizure and arrest,
there is nothing more to investigate. The investigating officer
is duty bound to complete the investigation. There is absolutely
no explanation for the prosecution for the delay in conducting
the investigation. This Court considered the consequence of
unexplained delay in investigation in detail in Kumaran v.
State of Kerala [2016 (4) KLT 718] and Mukundan v.
State of Kerala [2016 (3) KLT 532].
In the light of the above discussion, the appellant is
entitled the benefit of doubt. Therefore, this criminal appeal is
allowed in the following manner:
1. The conviction and sentence imposed on the
appellant as per the judgment dated 03.07.2006 in
S.C.No.278/2004 on the file of the Additional
Sessions Judge (Adhoc-II), Ernakulam is set aside.
2. The bail bond, if any, executed by the appellant
and sureties are cancelled.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
