Crl.A.2025 of 2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943 CRL.A.No.2025 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 469/2004 DATED 27-09-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA
AGAINST THE ORDER/JUDGMENT IN CP 6/2004 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,ADIMALI
APPELLANT/ACCUSED:
PAVANARAJ
S/O.PERIYAKARUPPAN, RGP III/346, NUMBER VEEDU,
KHAJANAPPARA KARA,
RAJAKUMARI VILLAGE.
BY ADV. SRI.SAJI MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 26th day of March 2021
The accused in S.C.No.469/2004 on the file of the Additional Sessions Court (Adhoc) II, Thodupuzha has filed this appeal being aggrieved by the judgment dated 27.09.2006, whereby he was found guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of 1,00,000/- and in default of payment of fine to undergo₹ rigorous imprisonment for a period of 3 months.
2. The case of the prosecution is that on 03.12.2002 at about 5.15 p.m., the accused was found selling arrack, by the Sub Inspector of Police, Rajakkadu. Before the court below, the prosecution examined PW1 to PW3 and Exts.P1 to P6 were marked. MO1 and MO2 were identified and marked. On the basis of the evidence on record, the court below found the accused guilty of offence and imposed on him the sentence referred above.
3. Heard.
4. Even though several grounds have been taken in the memorandum of appeal, on a perusal of the evidence on record, I
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find that there are several infirmities in the prosecution case. The offence is said to have been detected on 03.12.2002 and the accused is stated to have been arrested on that date. However, Ext.P3 property list which is seen dated 4.12.2002 was actually produced before the Court only on 7.12.2002. That is, there is a delay of 4 days in producing the contraband arrack before the Court, for which there is no explanation in the prosecution evidence. It has been held by this Court in several judgments that the delay in production of the contraband articles before the court, if not explained, is fatal to the prosecution case. [See Ravi v. State of Kerala (2018 (5) KHC 352), Ramankutty v. The Excise Inspector (2013 (3) KHC 308) & Balachandran V. State of Kerala (2020 (3)
KHC 697)].
5. Apart from the aspect of delay, Ext.P4 forwarding note produced in the case shows that it has been prepared on 4.12.2002. However the counter signature of the Magistrate does not indicate the date on which the signature was put. The document does not indicate the name of the officer with whom the sample is to be sent of analysis. There is no indication regarding the date of despatch. A covering letter written by the Magistrate is seen
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attached to Ext.P4 which shows that in a carbon copy of a letter, a date and name of the Police Constable is inserted. The date shown is 21.12.2002. The report of the analyst shows that the sample was received on 23.12.2002. The above infirmities are also fatal for the prosecution. [See Jayakumar v. State of Kerala (2018 KHC 3165), P. Kumaran v. State Of Kerala (2016 (4) KLT 718)].
6. In the above circumstances, the appellant is entitled to succeed. The judgment dated 27.09.2006 in S.C.No.469/2004 on the file of the Additional Sessions Court (Adhoc) II, Thodupuzha is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled.
This appeal stands allowed.
Sd/-
T.R.RAVI, JUDGE
dsn
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