Gineesh vs State Of Kerla
2025 Latest Caselaw 6976 Ker

Kerala High Court

Gineesh vs State Of Kerla on 20 June, 2025

Crl.R.P.No.2483/2013

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                                                      2025:KER:44281

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

        FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947

                       CRL.REV.PET NO. 2483 OF 2013

        CRIME NO.304/2007 OF Santhanpara Police Station, Idukki

        AGAINST THE JUDGMENT DATED 30.09.2013 IN Crl.A NO.7 OF 2011 OF

 III ADDITIONAL SESSIONS COURT, THODUPUZH ARISING OUT OF THE JUDGMENT

  DATED 08.12.2010 IN SC NO.282 OF 2008 OF ASSISTANT SESSIONS COURT,

                                KATTAPPANA


PETITIONER/APPELLANT/ACCUSED:

            GINEESH, AGED 29 YEARS
            S/O.SEBASTIAN, THOTTUVAYALIL HOUSE, MANITHOOKENMEDU,
            PALLIKKUNNEL KARA, SANTHANPARA VILLAGE, IDUKKI DISTRICT


            BY ADV SRI.LATHEESH SEBASTIAN


RESPONDENT/STATE/COMPLAINANT:

            STATE OF KERLA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
            COURT OF KERALA, ERNAKULAM 682 031

            SMT NEEMA T V , SR PP


      THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

13.06.2025, THE COURT ON 20.06.2025 DELIVERED THE FOLLOWING:
 Crl.R.P.No.2483/2013

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                                   ORDER

This criminal revision petition is preferred impugning the

judgment of the learned Additional Sessions Court-III, Thodupuzha in

Crl.A.No.7/2011.

2. The revision petitioner herein is the sole accused in

Crime No.304/2007 of Santhanpara Police Station registered for offence

punishable under Sections 8(1) & (2) & 55(g) of the Abkari Act.

3. The prosecution case is that, on 18.10.2007, the

petitioner was found in his house engaged in preparation of illicit arrack.

10 liters of arrack in a jar was found near the place where he was

distilling arrack.

4. The learned Judicial First Class Magistrate,

Nedumkandam took cognizance of the offence as C.P.No.152/2007.

Thereafter, the case was committed to the Sessions Court, Thodupuzha.

The Court of Sessions, Thodupuzha made over the case to the Assistant

Sessions Court-III, Thodupuzha for trial and disposal.

5. The trial court convicted and sentenced the accused

to undergo simple imprisonment for a period of one year and to pay a

fine of Rs.1,00,000/-. It is further directed that, in default of payment of

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fine, the petitioner shall undergo simple impediment for a period of six

months.

6. The appellate court confirmed the sentence.

Impugning the judgment of the learned Additional Sessions Judge,

Thodupuzha, the accused preferred this revision.

7. Before the trial court, PWs.1 to 4 were examined,

Exts.P1 to P6 were marked and MOs.1 to 8 were identified. PW1 is the

Sub Inspector. PW2 is the police constable who accompanied the Sub

Inspector. PWs. 3 and 4 are the independent witnesses. After the closure

of the prosecution evidence, the accused was questioned under Section

313(1)(b) of the Code of Criminal Procedure.

8. I have heard Adv. Lima T.V., the learned Public

Prosecutor and Adv.Latheesh Sebastian, learned counsel appearing for

the revision petitioner.

9. The learned Public Prosecutor submitted that the

impugned order is legally sustainable and no interference, whatsoever, is

warranted in this matter. He further submitted that the prosecution has

succeeded in alleging and proving the charge against the revision

petitioner.

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10. Per contra, the learned counsel for the revision

petitioner submitted that the impugned order is illegal, irregular and

improper. Both the trial court and the appellate court had failed to note

the illegalities and improprieties in this case.

11. The learned counsel further submitted that the

prosecution has failed to allege and prove the charge against the accused

beyond reasonable doubt. He submitted that the penal statutes are to be

interpreted strictly within the four corners of the statute. Suspicion,

however strong it may be, it would not be a substitute for proof. The

impugned judgment is based on surmises and conjectures.

12. I have heard both the sides and perused the records.

13. The learned counsel for the revision petitioner has

challenged the judgment mainly on three grounds. The first submission is

that the accused was arrested prior to the registration of crime. The

presence of crime number in arrest memo is a serious circumstance to

doubt the veracity of the prosecution case. Placing reliance on the

decision in Santhosh v. State of Kerala [2021(5) KHC 214], the

learned counsel for the petitioner submitted that the accused was

arrested prior to the registration of first information report, which is

illegal. The relevant paragraphs of the said judgment are extracted

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hereunder:

"14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration.

15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See: Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (3) KHC 715: 2020 (2) KLD 107: 2020 (4) KLT 188: 2020 (3) KLJ 711)].

16. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected."

14. Secondly, the learned counsel for the petitioner

submitted that wash was destroyed without taking sample and without

being produced before the Court. The procedures prescribed under

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Section 53A of the Abkari Act for disposal of the seized liquor has not

been complied in this case in its letter and spirit. In order to fortify this

contention, the learned counsel placed reliance on the decision in

Andikutty v. State of Kerala [2023 KHC 777]. The relevant

paragraphs are extracted hereunder:

"10. (11) Learned counsel for the revision petitioner submitted that, in the case on hand, there is violation of S.53A of the Abkari Act. According to him, the wash allegedly seized from the house premises of the revision petitioner in four plastic pots were destroyed by PW1 after taking samples. No inventory was prepared and the procedure prescribed under S.53A for destruction of the contraband was not followed. S.53A was introduced in the Abkari Act by Act 1 of 2003 with effect from 03.09.2002. The incident in this case occurred on 02.09.2005. So, S.53A of the Abkari Act was very much applicable in this case for the disposal of the contraband allegedly seized from the possession of the revision petitioner.

11. (12) In Appu v. State of Kerala [2016 (5) KHC 310], this Court held that, when S.53A of the Act prescribes the manner in which seized liquor, intoxicated drug or article are to be disposed of, it has to be complied with in its letter and spirit. In paragraph 6 of the judgment, it is stated thus: -...........A careful scanning of the provisions under S.53A of the Act would reveal that the procedures contemplated under S.53A(2) of the Act have to be followed before the destruction of the articles invoking the power under S.53A. Evidently, it is only the authorised officer who is competent to order for the destruction of the seized articles in terms of the provisions under S.53A going by provisions under S.67B of the Act. A perusal of

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sub-section (2) of S.53 A would reveal that the eveal authorised officer shall have to prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they were kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article and then make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared. Clause (b) of S.53A(2) provides that in the presence of such Magistrate photographs of such liquor, intoxicating drug or article and certifying such photographs have to be done. Going by clause (c) of S.53A(2) in the presence of such Magistrate representative samples of such liquor. intoxicating drug or article could be drawn after certifying correctness of any list of sample so drawn, Sub-section (5) of S 53A also assumes relevance. Going by the same, an inventory, the photographs of liquor, intoxicating drug or article or any list of samples drawn in terms of sub-sections (2) and (4) and certified by the Magistrate has to be treated as primary evidence by a court while trying an offence under the Act. The question whether the procedures thus prescribed under S.53A are mandatory or not was considered by this Court in Damodaran's case (supra). This Court held that an excise official or a police officer who detects offences under the provisions of Abkari Act is under the bounden duty to follow these provisions of the Act and that the said procedures prescribed under S.53 -A are mandatory in nature. I may hasten to add that in a case where the procedures which were to be followed in terms of the decision in Ravi's case (supra) were scrupulously followed or other words, the factum regarding the seizure of the article under S.34 of the Act was reported to the court forthwith and the seized articles

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were produced before the court without any delay and delay, if any, was explained the failure to follow the procedures under S.53A would not be fatal to the prosecution case. But, a case where such articles were destroyed even without following the procedures to be followed by virtue of Ravi's case (supra) the failure to follow the procedures prescribed under S.53A would be fatal to the prosecution. In a case where the prosecution asserts that seizure was effected from a contraband liquor or a material which was used for preparing illicit liquor in huge quantity and the said huge quantity were destroyed without following the procedures and in the absence of any evidence to show that a sample was taken from the residue which were destroyed, it would amount to deprivation of the statutory safeguard which is embodied in S.53 A of the Act. Even if the detecting officer or the authorised officer is of the view that the quantity of such liquor were to be destroyed and at the same time, the person who was found in possession of such materials was to be prosecuted, for a successful prosecution the procedures under S.53 - A are to be followed and in such circumstances, in terms of sub- section (5) of S.53 A despite the destruction of such articles the inventory, the photographs along with the certificate by the Magistrate would act as a primary evidence in respect of such offence. When that be the position, the failure of following the procedures under S.53A scrupulously would definitely vitiate the very prosecution itself..."

15. Thirdly, learned counsel for the petitioner submits

that the independent witnesses turned hostile to the prosecution. This is

yet another circumstance which casts doubt in the prosecution case and

benefit of doubt is to be given to the petitioner.

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In the light of the above discussion, I am of the considered

opinion that the impugned order is liable to be set aside. Both the trial

court and the appellate court overlooked serious illegalities which cuts

the very root of the prosecution story.

In the result,

(i) Criminal revision petition is allowed.

        (ii)        The impugned judgment is set aside.
        (iii)       The revision petitioner/accused is acquitted and he is
                    set at liberty.
        (iv)        The bail bond, if any, executed by the revision
                    petitioner stands cancelled.
        (v)         Fine, if any, paid by him shall be refunded.


                                                             Sd/-


                                                   K. V. JAYAKUMAR
                                                          JUDGE
Sbna/