Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 22ND DAY OF MAY 2020 / 1ST JYAISHTA, 1942 AGAINST THE ORDER/JUDGMENT IN SC 1557/2003 DATED 25-06-2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM AGAINST THE ORDER/JUDGMENT IN CP 18/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA APPELLANT/ACCUSED:
VASUDEVAN S/O.GANGADHARAN,PARATHUNDIL VEEDU, EZHUKONE VILLAGE, KOTTARAKKARA. BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN RESPONDENTS/COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE EXCISE INSPECTOR EXCISE RANGE, KOTTARAKKARA. BY ADV. BY PUBLIC PROSECUTOR SR.PP. B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Dated this the 22nd day of May 2020
JUDGMENT
The above appeal is filed against the conviction and sentence imposed on the appellant by the Additional District and Sessions Judge (Adhoc) II Kollam. The learned Sessions Judge convicted the appellant under Section 55(a)(b) and (g) of the Abkari Act.
2. The prosecution case is that about 20 years back, i.e., on
11.10.1999 at 12.30 p.m. accused was found engaged in manufacturing arrack using the materials, stills and utensils at Ezhukone Village, Idackidom Kolannoor muri near Thoppilpara in a property. The case was charge-sheeted against the appellant under Section 55(a) (b) and (g) of the Abkari Act. To substantiate the case prosecution examined PW1 to PW4. Exts.P1 to P5 are the Exhibits. MO1 to MO14 are the material objects.
3. On going through the evidence and documents the lower court found that the appellant committed the offence under Section 55(a)(b) and (g) of the Abkari Act. The sentence imposed is to undergo rigorous imprisonment for three years and to pay a fine of
Rs.1,00,000/- under Section 55(a) of the Abkari Act. In default of payment of fine, the appellant is directed to undergo simple imprisonment for one year. Aggrieved by the above conviction and sentence, this Criminal 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 against the appellant are accepted in toto, no offence under Section 55(a) of the Abkai Act is made out. The counsel also submitted that the important documents are not marked in this case. The learned Public Prosecutor submitted that the available evidence clearly established the offence alleged against the appellant. There is nothing to interfere with the well considered judgment of the lower court.
6. After hearing both sides, I think there is force in the
argument raised by the counsel for the appellant. It is a settled position that the prosecution has to prove all the links starting from seizure of the contraband article till it reaches in the hands of the analyst. In this case, the only document produced is the property list. The forwarding
note is not produced by the prosecution. Forwarding note is an important document to be marked in an Abkari case because, the specimen seal impression used for sealing the bottles containing the sample will be available in it. It is an important link to show that, seized article reached the hands of analyst. Non production of the forwarding note is fatal to the prosecution. In Gireesh v. State of Kerala [2019(4) KLT 79] this Court held that non production of forwarding note is fatal to the prosecution. This Court considered all the other decisions on this point. Therefore, on this ground alone, the appellant is entitled to the benefit of doubt.
7. In addition to this, the final report in this case was
submitted on 07.01.2003 whereas the date of seizure was on 11.10.1999. Absolutely no reason is there to the Investigating Officer for the delay in submitting final report. In Kumaran v. State of Kerala [2016 (4) KLT 718], Chandran v. State [2016(4) KLT 727]
and Mukundan v. State of Kerala [2016(3) KLT 532] this Court held
that, delay in investigation is fatal and that also can be a ground for acquittal.
8. In the light of the above facts and circumstances, I think the appellant is entitled benefit of doubt.
Hence this appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 25.06.2004 in Sessions Case No.1557/2003 on the file of Additional District and Sessions Judge (Adhoc) II, Kollam is set aside. The accused is set at liberty. The bail bond, if any, executed by the appellant is cancelled.
Sd/- P.V.KUNHIKRISHNAN JUDGE scs